International Longshoremen’s Association, AFL-CIO v. Allied International, Inc. – Oral Argument – January 18, 1982

Media for International Longshoremen’s Association, AFL-CIO v. Allied International, Inc.

Audio Transcription for Opinion Announcement – April 20, 1982 in International Longshoremen’s Association, AFL-CIO v. Allied International, Inc.

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Warren E. Burger:

We will hear arguments next in the International Longshoremen against Allied International.

Mr. Mathews, I think you may proceed whenever you’re ready.

Ernest L. Mathews, Jr.:

Mr. Chief Justice, and may it please the Court:

This case involves a totally different aspect of the same union conduct that gave rise to the Jacksonville Bulk case.

In that case you had an employer suing under Section 301 of the Labor Act to enforce his no strike clause.

In this case you have a customer of a customer of the longshoremen’s employer who brought an action for damages under Section 303 of the Act, alleging that the union’s conduct was a secondary boycott in violation of Section 8(b)(4).

That section provides or forbids a union from picketing or refusing to handle goods where an object thereof is to force someone to cease doing business with someone else.

This Court granted certiorari to review an order of the Court of Appeals for the First Circuit, which by a divided panel reversed the District Court’s dismissal of the Section 303 suit.

There were other causes of action pleaded which we will allude to, but they are not the subject of the proceeding this afternoon.

The union takes the position in this suit that just as Occidental said so strenuously, there is no labor dispute.

We are now echoing it.

There is no labor dispute, because the ingredient of suit on a collective bargaining agreement under a provision to provide labor is not at issue in this lawsuit.

The only dispute here, we say, is that non-labor political, and most important, foreign dispute between the union and the Russians.

We feel that the First Circuit was in error when it held that the activities in this case were in commerce so as to be even subject to the provisions of Section 303 of the Act.

We also feel that they were in error when they held that there was a violation of the Act when in this case there just isn’t any primary labor dispute.

And we also would urge this Court that the activity of the longshoremen is protected under the First Amendment.

That’s a long way down the road.

Actually, the jurisdictional point on whether the case is in commerce disposes of everything, and you go beyond there to whether you have a primary labor dispute.

That the Court should get to the First Amendment question is probably doubtful, but I think it casts, if you will, a shadow forward because so much of what I will say has to do with the fact that this is a political, but more important that it is a conscientious refusal to be involved in evil.

Well, do you suggest you can’t give up First Amendment rights by contract?

Ernest L. Mathews, Jr.:

You certainly can, and this is not a contract case.

That’s why we really didn’t urge the First Amendment case too strenuously in the Jacksonville Bulk thing, because the arbitrator could very well say yes, but you’ve waived them by contract, and you can.

But in this case it’s not a contract case, and the ILA has not waived their rights.

But the thrust of the employer’s action is to get you back to work.

Ernest L. Mathews, Jr.:

The thrust of whose action?

Well, doesn’t somebody want to get you back to work?

Ernest L. Mathews, Jr.:

Well, actually no.

In this case they’re seeking damages.

Well, they want to get you back to work.

Ernest L. Mathews, Jr.:

Well, yes.

And so why isn’t that a labor dispute?

It’s a dispute over whether or not you can cease furnishing your labor without suffering damages.

Ernest L. Mathews, Jr.:

No.

Well, there is a labor dispute element vis-a-vis our own employer.

There is no labor dispute element–

Well, I thought that’s what you said there wasn’t in the… that’s what you said it was in the last case.

Ernest L. Mathews, Jr.:

–Yes.

We said it was a labor dispute.

It is a labor dispute when it’s on a labor contract.

Well, but nevertheless, it’s a dispute over whether you’re going to furnish labor or whether you can strike in the circumstances of this case.

Ernest L. Mathews, Jr.:

Yes, but… well, I don’t think we have a problem with Norris-LaGuardia in this particular–

I know, I know.

But you said it wasn’t a labor dispute.

Ernest L. Mathews, Jr.:

–Well, I don’t think there is any primary dispute.

There may be a secondary labor dispute; that is, whether we have to work or not.

But there is no primary labor dispute, and in the course of my argument I will get to that issue.

But much more fundamental is the threshold issue of whether the activities here are in commerce.

And here the union relies on the decisions of this Court a few years ago, or a whole line of decision really going back for some 20, almost 25 years, but particularly the last two statements in the Windward and Mobile cases.

Over a period of years the Court has ruled that the NLRA was just not intended by Congress to be thrust into affairs that did not concern domestic commerce.

The phrase that the Court has used to denote what was not under the Act is “not in commerce”.

But the latter is really a shorthand form of the former.

Ernest L. Mathews, Jr.:

Yes.

It’s a term of art.

And sometimes you might say it’s not subject to NLRB jurisdiction, sometimes you might say it’s not subject to the Act, sometimes you might say it’s not in commerce.

Al the time you are talking about the same thing: what did Congress intend to cover by the Act.

And the phrases they weave in and out, but I think they always mean the same thing.

And the Court has said… of course, the ramification if they are not in commerce and not subject to the Act, then they are not subject to regulation by the NLRB, and they also cannot be made the subject of an action under Section 303 of the Act.

Most of these cases have involved causes of action brought by foreign entities themselves against the union who has picked a dispute or gotten involved in a dispute with the foreign entity.

And in most of the cases the foreign 7 entity has gone into state court, and the union has tired to say no, this is under the federal act; and this Court has consistently told the union no, it is not under the federal act; the foreign entity may pursue its remedies in state court.

In Windward this Court held that the union activity to protest wages and conditions on a foreign ship was not in commerce when it was complained of by the foreign ship owner.

Ernest L. Mathews, Jr.:

It was the classical thing.

The foreign ship owner went to state court.

The union said no, there’s no jurisdiction.

I believe in that case the state court agree with the union.

It went up through the highest court of the state, came to this Court, and the Court said no, this is not even arguably protected by the federal act, it is matter of state law, and sent the case back.

That arose in the Port of Houston.

Then a few months later in the Port of Mobile, Alabama the union did the same thing to the same ship company, but instead of the ship company bringing the action, an American employer who hired longshoremen… in this case the longshoremen were not the picketing people… but the American stevedore brought a state tort action saying you’re interfering with my contract to unload the ship, and I believe a soybean farmer brought an action saying you’re interfering with my contract to have my soybeans carried.

And the union said look, what they’re arguing here is a secondary boycott subject to Section 8(b)(4) of the Act.

It is under federal jurisdiction and you can’t bring a state court action.

And this Court again instructed the union no, that is not true.

We held in the Windward case that your activity directed towards a foreign entity was not in commerce, and we can’t say that the same activity, just because it’s complained of by a different plaintiff, is now capable of being split off or, and the word the Court uses the key word, is bifurcated, and made the subject of a domestic dispute.

No, leave it to the state courts.

I think this case would not have presented any difficulty to anyone if we had had our companion Windward case.

If the first time that this Russian action of the longshoremen had been triggered was when a Russian ship came into port… and they were on their way when the thing was called… when this Russian ship came into port if the longshoremen had refused to handle the goods, whatever they might have been, and the Russians had gone into state court, I think anyone would see that the principles in Windward apply even more persuasively than they did in Winward.

Not only is this not a dispute aimed at the concerns of the domestic Labor Act… the wages, conditions, hours of employment, the relations between domestic employers and employees… but it’s not even concerned with labor at all.

It’s concerned with military policy, if you will, foreign policy.

The thrust of the union’s action is in no way directed toward a labor objective and is outward directed away from our shores a half a world away to Afghanistan.

I don’t think anyone would have any difficulty seeing that that was not a labor dispute in commerce.

I confused my terms.

Labor dispute was the last case.

The key word here is that was not in commerce for purposes of federal jurisdiction and preemption, so that these Russians could not go into state court.

If we’d had that case, as I say, the Windward principles would apply, and then there would be no difficulty in seeing that once you had your Windward, your Mobile would follow.

Let me try a variation of Justice Powell’s question to you.

Suppose the particular employer was actively engaged in supporting the enactment of right-to-work laws in various states, including that area, and otherwise the circumstances were the same.

Ernest L. Mathews, Jr.:

And there was no foreigner.

Then I don’t think the in commerce problem would arise, no.

What makes it not in commerce is the fact that it is directed outside.

The question as to whether it’s a labor dispute and all that might still arise, but we couldn’t make the argument that that was not in commerce, no.

Suppose it involved shipments to Hawaii or Alaska?

That’s pretty much in commerce, isn’t it?

Ernest L. Mathews, Jr.:

Yes.

Hawaii and Alaska are part of the United States.

All right, Now, it’s out of Louisiana or make it New Jersey on its way to ports in California or Seattle.

In commerce or not?

Ernest L. Mathews, Jr.:

The goods may be in commerce.

The dispute is not in commerce.

That is the point.

When you read Windward and Mobile, the thing that is not in commerce is not the goods.

I mean, this Court was not blind to reality.

The activities in all of these cases… Benz, McCulloch, Incres, all of them, Ariadne… they were all just as much in commerce as a practical effect.

But what isn’t in commerce, if Mr. Brezhnev gets a stomachache, the stock market goes down; in our interrelated world, everything’s in commerce.

But when we’re talking about those words “in commerce”, it’s what did Congress intend to regulate.

Congress didn’t intend to regulate foreign–

Isn’t that really it?

You keep saying in commerce.

I expect that’s only a shorthand way for saying that there are certain kinds of differences, and this is one, that Congress did not intend should be within the reach of the National Labor Relations Act.

Ernest L. Mathews, Jr.:

–That’s right.

And this is one.

That’s really what your argument is.

Starting with Incres, that whole line of cases.

Ernest L. Mathews, Jr.:

That’s right.

And the definition has been whether or not the union is aimed at doing things involving a foreign power, as in the case of a foreign ships company and that sort of thing, isn’t that it?

Ernest L. Mathews, Jr.:

That’s right.

And here the same thing.

Well–

Isn’t there a difference, though, Mr. Mathews?

You used the example of the Winward and the Mobile cases, and you point out those were foreign ship owners.

Had they been American ship owners that brought those cases, then I think you’d agree they would have been covered.

Ernest L. Mathews, Jr.:

–Yes I would think so.

And here we have an American ship owner.

Ernest L. Mathews, Jr.:

Yes and no.

The American ship owner is not bringing this case.

We do have an American ship owner?

Ernest L. Mathews, Jr.:

Pardon?

We do have an American ship owner.

Ernest L. Mathews, Jr.:

Yes, but this is not… I mean obviously we are not… our boycott, our activity is not limited to a particular ship the way that was.

It’s limited to Russian goods and maybe Russian goods carried on American ships.

The First Circuit, whose decision we’re appealing here, grappled with that problem, too, because the board after it failed to get a 10(1) injunction against this in Houston, which was affirmed by the Fifth Circuit on this very ground that it wasn’t in commerce, went to Boston and tried to get an injunction and made the argument well, then, in Houston the ship was a foreign ship and in Boston the ship is an American ship.

And it didn’t get very far with the First Circuit, because as the court realized, it’s th nature and thrust of the union’s activity.

What is the union trying to affect?

Now, if it were an American ship and we were trying to affect the conditions aboard an American ship, pay to American seamen who were subject to the Act, yes, that would be in commerce.

Where it’s not an American ship–

See, the words “in commerce” define a kind of activity rather than the motive of the people engaged in it, and those cases, it seems to me, could be summarized by saying that the activities of foreign ship owners in delivering goods to the American shores are not in commerce within the meaning of these statutes.

Ernest L. Mathews, Jr.:

–Well, yes… no, I don’t think they could, because the one little exception that proves the rule, that the Court in the Ariadne case where if you looked at what happened, there were the people on the dock and there was the foreign ship, but you really couldn’t tell what it was all about, the Court held that was in commerce because what they were disputing over was the foreign ships wages that they payed American longshoremen on the ground.

So it’s really what is the union trying to affect.

In other words, the exclusion from what would normally appear to be commerce is foreign ship owner insofar as they employ foreign seamen.

Ernest L. Mathews, Jr.:

Well, that of course is an argument that some people make, that the only thing that’s not in domestic commerce are foreign ship owners who don’t employ or employ foreigners.

I think that’s restricting Mobile and Windward to the precise situation raised there, and it’s really unrealistic.

But the dissents in those cases make a pretty good argument for not reading them expansively, let me put it that way.

Ernest L. Mathews, Jr.:

But for instance, what would you do if the same thing happened at an airport, and we no longer had a foreign ship owner but we had a foreign air fleet, and the objection was to the way they paid their pilots or something.

I don’t think there’d be a real distinction there.

The real thing is, the controlling factor was what this Court said, that the Congress just didn’t intend to regulate these foreign matters, strain them through the filament of this Act.

And the Court based its holding very strongly on an idea of comity, which I really think I have to address because everyone seems to take this comity to mean they didn’t want the National Labor Relations Board getting involved in all this.

And I think that that’s a very oversimplified approach, because there was no question in most of those cases but that the National Labor Relations Board just wasn’t going to get into it.

Nobody could force somebody to bring a charge before the NLRB any more than they could force them to bring a Section 303 action.

Well, would you make the same argument if the strike banners said quit doing business with some shipper that was shipping to Russia?

Ernest L. Mathews, Jr.:

Would I make the same argument?

They went to the employer and said quit doing business with Ford shipping to Russia, and they went on strike and said quit doing business with Ford.

And add to that that the objective is to have an influence on the pending labor negotiations which are pending right this minute.

Suppose that was the objective of the union saying don’t handle any Ford shipments overseas.

Ernest L. Mathews, Jr.:

To have an influence on Ford’s pending labor… well, no.

If that were in fact the case, then I don’t think you could say it was not in–

Well, what about the in commerce argument, though.

No matter what the purpose of the strike was, what the ultimate objective was, the pressure was placed on the employer by a strike to quit doing business with Ford because Ford was shipping goods to Russia.

Now, you wouldn’t be making the same commerce argument.

Ernest L. Mathews, Jr.:

–No, I don’t think… because you would not have that first confrontation between the union and the foreign power.

I think really there you have a bifurcated–

But what if the result of the action that you took in this case was precisely that: quit doing business with Ford?

Ernest L. Mathews, Jr.:

–Well, I don’t think that you can do it by the result.

You don’t think that’s the purpose?

Ernest L. Mathews, Jr.:

Yes.

Well, that’s part of the essential analysis of any secondary boycott is purpose, and it seems to run through, as I say in the Ariadne case, it was what is the purpose of the union.

Are you stuck with the results you predictably produce?

Ernest L. Mathews, Jr.:

No, I would not.

If you want to jump to that, Justice White, I think that kind of mechanistic approach is just one reason why this thing should be left to state courts and not given to a bureaucratic agency that tries to put round holes in square pegs.

The only thing… and all of the evidence… mean you do not have before you the analogs–

You mean if the state court took this on and then enjoined it you wouldn’t be objecting on th ground that the board had exclusive jurisdiction?

Ernest L. Mathews, Jr.:

–Well, we certainly wouldn’t now, not with what we know about, the NLRB, certainly not.

[Laughter]

And we really feel that the kind of thing that is involved is really just beyond, I don’t want to say competence, but the ken of the board.

They look at things from this secondary boycott point of view.

If I can give you an example, we raised First Amendment questions.

They get so far as the finding that the international union did certainly encourage the longshoremen in what they did.

Once you have that, that’s enough to make an inducement for a secondary boycott.

But they stop right there and then just don’t go into the question of where did this come from, was it really an expression of the will of the individual workers.

No.

We’ve satisfied our inducement.

You check that box and mechanistically you go on to the next.

Any predictable, foreseeable result must be an object.

In fact, they amend Section 8(b)(4) and put “effect” instead of “object”.

Ernest L. Mathews, Jr.:

If the union could predict it, it must be an object of the union to bring to pass.

I, for one, can’t see how a rational person does that.

I’ve said to every court if I wished to marry a girl, I get her mother as my mother-in-law.

It is necessary, it is foreseeable, it is predictable, but it may be the furthest thing from my object in the world.

But in our human life we’ve got to take the good with the bad.

If the union’s object was nothing more than to themselves refrain from being involved in dealing with the invaders, the predictable results would be just the same.

You just can’t jump to the conclusion that they must have had some other object.

They may have only the object to control their own–

That may be so in terms of whether there might be an unfair labor practice, but I don’t know why you have to apply the same rationale to whether it’s in commerce or not.

Ernest L. Mathews, Jr.:

–I was talking in terms of the unfair labor practice.

Your question escapes me, sir.

Well, your first argument is that there’s no domestic commerce involved here.

Ernest L. Mathews, Jr.:

That’s right.

That the whole thrust, purpose, motive of ILA’s activity–

That may not be an unfair labor practice.

I mean just because it might be in commerce doesn’t mean there’s an unfair labor practice.

Ernest L. Mathews, Jr.:

–No, that’s true.

–That your rationale about what an unfair labor practice is may not apply to whether it’s in commerce or not.

It may be that impact and effect are enough.

Ernest L. Mathews, Jr.:

To bring it into commerce.

Yes.

Ernest L. Mathews, Jr.:

It may be.

Of course, we would argue if it is in commerce, why, it is not an unfair labor practice because we don’t have the prescribed object.

If you will, I’d like now to reserve the rest of my time for rebuttal.

Warren E. Burger:

Mr. Batista.

Duane R. Batista:

Mr. Chief Justice, and may it please the Court:

Let me first address the issue of jurisdiction and the foreign flagship cases.

One essential thread that comes through all of the foreign flagship cases, starting with Benz through Windward and Mobile, is the question, the concept, the issue of comity.

Again and again this Court in those cases has said it is because of comity and comity considerations alone that we find either the given activity in question to be in commerce or not in commerce.

I think initially we need to step back a bit to take a look at these foreign flagship cases and perhaps put them into perspective.

Duane R. Batista:

To my knowledge, and neither the ILA or the AFL-CIO in its amicus has cited anything else, the foreign flagship cases are the only cases anywhere in our jurisprudence that hold that comity considerations preclude a federal statute from applying and regulating and governing the conduct of Americans on American soil that has a substantial effect on other Americans.

Well, Mr. Batista, do you understand that to be, after you’ve gone all through the policy considerations, conclude therefore Congress never intended this Act to reach that conduct?

Duane R. Batista:

Well, I think this Court in dealing with the particular unique situations presented by the foreign–

Hasn’t that ultimately been the… of course, I was in dissent in all those cases… but isn’t that ultimately the bottom line, that a statute simply can’t be construed to reach conduct of this kind because of the foreign policy considerations.

Duane R. Batista:

–Yes.

Conduct of the kind presented in the foreign flagship cases.

Yes.

Duane R. Batista:

Which I hope to demonstrate is very, very different in terms of comity considerations than the conduct involved in this case.

Now, the foreign flagship cases basically by and large, and particularly Windward and Mobile, involved picketing by Americans right at the immediate site of a foreign flagship and its crew.

It was picketing designed for the purpose of either forcing American law or American standards upon the management and particularly labor relations of that foreign flagship.

I think one might reasonably view, and certainly one might reasonably not view, but one could reasonably view that kind of conduct as creating a comity problem with respect to relations with the foreign nation under whose flag the ship was flying.

Here we have a very, very different, totally different situation.

I think we could perhaps view our situation if we took a mirror image.

Let’s assume that the United States found it necessary to intervene militarily in El Salvador.

Let us assume that as a result of this a Brazilian labor union interfered with trade between Brazil and the United States.

Let us now assume that the Brazilians applied their national labor law, national Brazilian labor law, to regulate or control the action of that labor union.

I can’t imagine there’s anybody in this room that would feel that somehow the Brazilians were interfering with either internal United States law or internal United States policy by applying their Brazilian national law to cover and regulate the conduct of that Brazilian labor union in Brazil.

And that of course, flipping the mirror image back again, is exactly the situation we have in this case.

Mr. Batista, apart from the comity argument, hasn’t this Court in the Treefruits case and in the Safeco case indicated that Section 8(b)(4) is directed to an isolated evil, and due to the First Amendment concerns given that a very narrow meaning quite apart from the foreign comity issue?

Duane R. Batista:

Well, that really goes to the second issue which is not jurisdiction but whether or not there has been a violation of the Act.

And I think if we turn to that issue, we really, Allied and I think the NLRB, reading their opinion, are strongly relying on Safeco and precisely the distinction made by this Court between Safeco and Treefruits, which is fundamentally that when a union induces employees to, in this case, refuse to handle a product, and it is reasonably foreseeable that substantial business disruption will result from that inducement, and that inducement can no way be viewed as a primary strike, then by applying the simple, plain language of the National Labor Relations Act, of Section 8(b)(4), you have a secondary boycott.

As far as the impact of the constitutional element is concerned, Safeco specifically drew the distinction between on one hand the substantial business disruption, on the other hand contrasting Treefruits, the slight business disruption.

Also, I think an excellent point was made by Occidental in their amicus brief with respect to the constitutional issue, and that was there would be no constitutional issue raised in this case if this were just a run-of-the mill, ordinary hot cargo secondary boycott arising out of a run-of-the-mill, ordinary labor dispute over wages, hours, terms, or conditions of employment that caused this degree of disruption.

On the other hand, if this degree of disruption had been caused arising out of a political objective… for example, protestors blocking exits or entrances to a nuclear power plant… again, there would be no question that those protestors who are disrupting the operation of that nuclear power plant didn’t have First Amendment protection to do this.

So in other words, what we’re suggesting is what the ILA is trying to do here is add nothing to nothing and get something.

We really submit and we think that the briefs, not only our brief, the brief of the Solicitor General, the briefs of the amici dealing with the constitutional issue show very conclusively that there really is absolutely no substantial constitutional issue here.

The scale of disruption on one hand when balanced again against whatever residual constitutional interests might be involved, remember, we are not talking here about rights of individual workers to refuse individually or even spontaneously in concert to handle product.

We are talking about an order issued by the head of a major labor union who has the power… which labor union has the power to shut down trade, East Coast, Gulf Coast, and the Great Lakes ports.

And as far as we can see, the only constitutional right involved is that of allegedly a Mr. Gleason to apply his own beliefs and his own feelings; and we feel that that certainly is not balanced out vis-a-vis the extraordinary disruption involved in this case.

Mr. Batista, may I go back to the jurisdictional issue for a moment?

You emphasize the comity theme that runs through those cases, and the point being, as I understand it, that the American activity that’s not protected would interfere with foreign interests in running its own affairs with respect to labor relations.

But isn’t there the same comity interest here in that the activity of the international labor association or… I’m sorry… the Longshoremen’s Association, ILA, clearly must cause friction with Russia if they’re not going to ship goods to Russia because of this activity.

Why isn’t the comity… I don’t understand why the comity argument you make doesn’t cut against you.

Duane R. Batista:

Well, for one thing, the activity, governmental regulation of that activity can only create a comity problem if that government regulation tends to protect the activity.

In this situation, as we’ve tried to develop in our brief and also some of the amici, the activity in question can’t be protected because unlike the primary picketing at the primary situs of a foreign flagship, which could be arguably protected activity depending on the nature of the picketing, statements perhaps some of the pickets have made, and what not… here, the conduct occurring in the United States, the order of Mr. Gleason, which is the conduct in question, is clearly secondary.

And secondly, as also demonstrator argued by Mr. Gies in the JBT case, it can’t be protected in any event by Section 7 of the National Labor Relations Act because it’s devoted towards a political objective by virtue of this Court’s… at least language in this Court’s Eastex decision.

So for that reason we cannot see–

Your point is that it’s friction caused by governmental activity as opposed to the private activity.

Duane R. Batista:

–Well, the friction can be caused by the private activity.

The question of comity comes into play where the governmental activity tends to protect something that causes the friction.

Here we’re going in the other direction.

I think here we’re going in the direction really of the question that was raised in the Plumbers Union v. Dorr County case before this Court in the late 1950s where the issue was whether secondary boycott applications law could apply to a dispute with the county or municipality.

And the question was raised does this interfere with the municipality, and this Court’s answer was no, if anything, applying the secondary boycott provisions to terminate the disruption furthered the interest of the municipality.

So for these reasons we really feel that the foreign flagship cases are totally distinguishable and apart from this situation.

One final element which is also quite distinguishable and should be kept in mind, the essential inherent dispute or difference in this case revolves around the cargo.

Now, while Mr. Gleason’s order also involves Russian ships, Russian ships are not involved in any way, shape or form in this particular case.

We used the example, hypothetical in our brief.

This case conceptually could have arisen just as easily in the middle of Nebraska where on a trucking dock in Omaha a teamster local union order its members not to handle Russian cargo.

And it just simply escapes Allied what possible relevance foreign flagship cases could have to this essential product and cargo dispute.

So it’s only the cargo dispute and the product dispute that is before this Court today.

Your basic comity argument, though, would be equally strong even if there were Russian flagships.

Duane R. Batista:

Yes, in our view.

I think unless the Court has any further questions… well, let me just cover one point further relating to the secondary boycott issue, and that is that one particular statement that my brother Mr. Mathews made I feel is particularly cogent relating to the situation faced by Allied in terms of the Russian boycott, and that was that a safety factor, he said, in restricting political strikes and disruption of this nature is the union members’ need to and interest in being able to eat.

The critical element as far as Allied is concerned is we don’t have that safety factor here.

Russian trade is but a relatively small percentage of the trade that passes through every or most of the ports in this country.

As long as those ports are reasonably busy, the union can order its members not to handle Russian cargo, and those members will lose little or nothing in terms of wages.

Also, the shipping association employers, as a result of this, as long as the ports are reasonably busy, losing little or nothing in profits.

So they have no interest in terminating the dispute, the union members have little or no interest.

It is only Allied and the interests of American foreign policy and others involved in Russian trade that are adversely affected.

That’s precisely why we feel it is absolutely necessary to have protection under the National Labor Relations Act to ensure that parties such as Allied can have protection, and the public can have protection, and the national interest can have protection against this kind of union conduct.

Duane R. Batista:

Allied asked the Boston Shipping Association to file and commence a 301 action under their labor contract.

They refused.

It just wasn’t important enough to them.

And indeed, only five 301 actions, according to the union’s brief, were filed against this Russian boycott that involved, oh, perhaps over a billion dollars’ worth of trade potentially.

One of those, of course, was Occidental’s in the JBT case.

So we cannot rely on contracting parties to resolve this kind of issue.

We need the National Labor Relations Act.

Thank you.

Warren E. Burger:

–Mr. Wallace.

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the Court:

I would like to touch briefly on each of the three issues in the case: the in commerce issue, whether there’s a violation of 8(b)(4), and the First Amendment issue.

The in commerce issue, it seems to us, would be clarified if one would pose the question whether a primary labor dispute with these particular employers would be covered, a dispute between the union and what the Court of Appeals called the all-American cast of characters here.

It seems that the answer is obvious, and the fact that the dispute here is secondary in nature doesn’t give a reason for reaching a different result.

It’s only in cases where that dispute and its manifestations coincided with the primary labor dispute that was outside the jurisdiction that the Act that the court has reached a different result.

Here there is no primary labor dispute.

Even though there is a primary dispute of a different nature, there is no reason for concern that somehow the Act on the board’s scope because of a primary dispute that coincides with the secondary one will be improperly extended beyond the area where Congress intended it to extend.

And for that reason, there’s no reason to reach a different result with respect to a secondary dispute between the union and these employers than would be reached with respect to a primary dispute which would clearly be within the scope of the Act.

Mr. Mathews has posed the hypothetical that a different result or the result would be clearer if this were a Russian ship rather than an American ship.

That question happens to be pending before the board now, and the board has not yet spoken on it.

But what is apparent is that the analog that he draws to this Court’s decision in Windward and Mobile does not seem on the face of it to be the closest analog, because those two cases involved a dispute about the terms of employment of the foreign seamen on the foreign ship wherein so far as a labor dispute is involved here, the question is whether American longshoremen will service the foreign ship.

That is the type of question that was involved in the Ariadne case rather than in Windward or Mobile where the opposite result was reached.

And the Court held that picketing with respect to the longshoremen and the terms under which they would service a foreign ship was arguably protected by the Act and therefore could not be enjoined by the state courts.

And that at least on the face of it seems to be the closer analogy to the hypothetical.

With respect to whether this is a secondary boycott prohibited by 8(b)(4), in one sense it is the classic example of a secondary boycott, a refusal to handle hot cargo, regardless of the reason why the union considers it to be hot cargo.

It certainly, as we show in our brief, within the terms of 8(b)(4), and as we indicate, the legislative history discussed the purpose of 8(b)(4) in very comprehensive terms.

At one point during the debate Senator Taft said after hearing weeks of testimony no one ever succeeded in explaining to us the difference between a good secondary boycott and a bad secondary boycott.

Now, it is true that most of the testimony and most of the discussion concerned what typically had been experience, which was an effort to engage in secondary boycotts in support of primary labor activity.

Political strikes were not commonplace and certainly weren’t in the forefront of the discussion.

Minority views were expressed in the committee reports and were supported by President Truman in which they tried to limit the prohibition of 8(b)(4) so as to preserve the legality of secondary activity that would be in support of legitimate primary labor-related activity that the union would have an economic interest in.

But even that effort to preserve secondary activity in that limited context failed, even when it would be in the union’s economic self-interest to engage in the secondary activity, because the prevailing view was that the secondary activity unfairly had adverse effects on other employers and businesses that were not offending.

Lawrence G. Wallace:

And there is also one indication that political strikes were not wholly beyond the attention span of Congress in enacting Taft-Hartley, and that was the fact that they included in Taft-Hartley a now repealed section, Section 9(h), the anti-communist affidavit section, that was discussed in this Court’s opinion in American Communications Associations against Downs, which is not cited in the briefs but it’s 339 U.S. 382.

And the reason that Congress put the non-communist affidavit into Taft-Hartley was because of concern that union officials with an allegiance to a foreign power or to a party directed by a foreign power might use their office to conduct political strikes, and that would be an unwarranted disruption of commerce.

So that this concern was not wholly beyond the purview of those who enacted Taft-Hartley and spoke in such comprehensive terms about prohibiting secondary boycotts.

Now, to turn briefly to the First Amendment claim here, which arises not in the context of picketing where there is arguably greater protection of free expression, but in the context of a union-directed work stoppage.

The hot cargo, the refusal to handle the hot cargo here really amounts to an adoption by the union of a trade embargo with a foreign power, what might be thought to be a quintessentially governmental decision whether to engage in a trade embargo.

The First Amendment claim of a right to do this is really quite an extraordinary claim.

This is a matter that not only is a matter of high governmental policy but a matter of concern to all citizens in the country and to all aspects of opinion in the country, to be expressed through the representative processes.

But the union, because it is strategically located to do so on its own, is claiming a right to short-circuit anyone else’s discussion of the matter or efforts to influence governmental policy and to decide on its own that a trade embargo with a foreign nation will in fact be effectuated.

This is an extraordinary claim of a First Amendment right which is really antithetical to the purpose of the First Amendment.

So is your basic submission that it’s conduct rather than speech, is that it?

Lawrence G. Wallace:

That is the basic submission.

The fact that it is conduct engaged in for the purpose of expressing a political protest does not mean that the First Amendment immunizes it.

That is–

If they just went ahead and worked but carried the same message around on cardboard it would be all right.

Lawrence G. Wallace:

–Or wore black armbands or whatever they wanted to do.

And the board has suggested that they could, of course, picket the Russian embassy or consular offices.

But in United States against O’Brien in an opinion of this Court by Chief Justice Warren a similar’s claim was made with respect to the First Amendment right to burn draft cards as a form of political protest and was rejected by the Court.

And this is certainly conduct that has detrimental effects on other persons that might even be analogized more to a First Amendment claim of right to engage in acts of political terrorisms, but one needn’t go that far.

There simply is not a basis for a legitimate First Amendment claim to engage in conduct of this sort.

Warren E. Burger:

Do you have anything further, Mr. Mathews?

Ernest L. Mathews, Jr.:

Well, Mr. Chief Justice, and if it please the Court:

A word about the safety factor, the asymmetrical problem that Mr. Batista mentions.

All I can say is that really it’s sort of a naive argument to make.

The last time this union was before this Court it was on the question of containerization, the infamous rules on containers, where the union is going crazy over the loss of work due to technology.

To think that the loss of any day’s pay is not a real sacrifice for longshoremen to make or for locals who have particularly heavy traffic in Russian cargo is just simply not to be with the realities.

I’m sure the Court is aware of the condition of the United States merchant marine at this time.

Most cargo is carried on foreign ships.

To think that the ship owners and the shipping associations are not concerned over loss of business is just to be arguing in a different world.

What if they refuse to handle and unload ships carrying Japanese automobiles on the West Coast on the grounds that this was hurting the United Automobile Workers, which surely it is, and a lot of other people… bankers, automobile dealers.

Ernest L. Mathews, Jr.:

In that case I don’t think you would have the not in commerce argument, because what… the union’s dispute would not be motivated towards the policies of the foreign competitor.

Ernest L. Mathews, Jr.:

It would be motivated toward the policies of people who import Japanese goods.

It’s not that the Japanese did something bad, they made the best product they could at the cheapest price.

I really… of course, it is your job to probe and think of this possible ramification and that possible ramification, but I’d much rather argue the case that I have.

Don’t you think it’s relevant to what we’ve got before us in these two cases?

Ernest L. Mathews, Jr.:

It’s relevant, but it’s not quite the same thing that you have before you; because as I said at the start, this is a transcendent thing.

The invasion of Afghanistan and the Polish thing is such a horrible situation that the union’s response to say I just don’t want to have any part to do with those people is a perfect–

But there’s a much greater compatibility between the latter hypothetical I gave you, protecting American working men, than there is in the Afghanistan or Polish or–

Ernest L. Mathews, Jr.:

–I would disagree.

I don’t feel any particular outrage that the Japanese make a better good than us cheaper and sell it here.

I do feel outraged at what happened in Poland and what happened in Afghanistan, and the longshoremen did, too.

–I’m talking about the pocketbook issue, which is normally what unions are interested in.

Ernest L. Mathews, Jr.:

Yes.

But that’s why I say this isn’t a pocketbook issue.

It’s not a labor dispute.

It’s not a commercial dispute.

It’s a political dispute.

It’s a conscientious dispute.

And, you know, to try to squeeze it into the mold of the Labor Act is to regulate–

What about refusing to handle any goods from Italy on the grounds that they’re trying to bring pressure on the Pope on some of this positions on abortion and so forth?

Ernest L. Mathews, Jr.:

–Of course, Your Honor, you can make a million examples.

The point is the world was outraged at Afghanistan, as we have been by Poland.

The Pope himself said don’t stand by, world, and let Solidarity go down the drain.

The Polish ambassador said do something, America; you know, don’t just bring Lech Walesh over here and give him awards, do something.

The longshoremen did something.

But you can’t do anything unless you’re outraged.

Ernest L. Mathews, Jr.:

Excuse me?

You wouldn’t do anything unless you’re outraged.

Ernest L. Mathews, Jr.:

Yes.

I think it has to be–

Well, who decides whether you’re outraged?

You do.

Ernest L. Mathews, Jr.:

–Sure.

That’s a personal… what outrageous means.

Don’t you put yourself above the government?

Ernest L. Mathews, Jr.:

Not above the government.

What we’re saying is you don’t use a labor act to squelch activity that doesn’t have anything to do with labor.

That’s the problem here.

You’re trying to take the National Labor Relations Act, which as Justice O’Connor said had certain specific evils to regulate, and those evils weren’t political protests, political protests that other people might find unpleasant.

Look, if any business decided they don’t want to handle Russian goods, their workers lose the work, but nobody would say they’re violating the law.

Why shouldn’t longshoremen have the same right to do what Sam Goldwyn said, include me out.

As long as you’re going to act like that, we’re putting you in Coventry.

We don’t want to have anything to do with you.

And to question that this is not really a conscientious decision, a decision that really goes to the deepest held feelings about what is right and wrong I think is just to put blinders on.

So you say it’s the same as though some civic association, not a union, came down and put a picket line around this ship between the ship and the stevedore, and it just so happens that the union honored that picket line, and then the employer tried to claim that the association that was doing the picketing was engaged in a secondary boycott.

Ernest L. Mathews, Jr.:

I do.

And I think that, you know, we shouldn’t have the protection of the Act in that situation.

In that situation you have no Norris-LaGuardia.

Send it to state court.

You know, in doing the research of this case I was amazed at the number of times that the federal district courts just take a case which somebody tries to bring as a secondary boycott and says this is not a labor dispute.

You’re fighting with a landlord over the rent, or you’re fighting about the collection of a bill.

Remand it to the state courts.

They never get up to the circuits because it’s not an appealable order, but they do it as a matter of course.

What Allied has here is a claim for tortuous interference with conscience, and we’re willing to litigate that claim in the state courts, but don’t federalize it.

Don’t make it a federal case which puts the imprimatur of the United States Government on any result.

Do you know of an instance where a labor union, an international union has urged us to turn the matter over to the state court?

Ernest L. Mathews, Jr.:

No, I don’t.

Your Honor.

I didn’t think… this is the first time.

Ernest L. Mathews, Jr.:

But I would be willing to litigate this case–

This is the first time.

Ernest L. Mathews, Jr.:

–In front of an American jury rather than a bunch of bureaucrats who very frankly let it come through that their opinion… and this would be my closing word… that what’s important here is policy.

Forget the law.

Forget that it’s Congress who writes the statutes.

Make your own new amendments to the Norris-LaGuardia.

Forget your precedents.

But just stop this boycott.

I think that’s an argument that is so ironic in this case because it really belongs over there on the same people who went into Afghanistan.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.