Liner v. Jafco, Inc.

PETITIONER:Liner
RESPONDENT:Jafco, Inc.
LOCATION:New York Times Office

DOCKET NO.: 43
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State appellate court

CITATION: 375 US 301 (1964)
ARGUED: Nov 21, 1963
DECIDED: Jan 06, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – November 21, 1963 in Liner v. Jafco, Inc.

Earl Warren:

Number 43, N.L. Liner et al., Petitioners, versus Jafco, Incorporated, et al.

Mr. Fuston.

S. Del Fuston:

My name is Fuston sir, it’s a common mistake.

Mr. Chief Justice and may it please the Court.

This is a labor case involved in preemption that arose in the State of Tennessee.

It’s a case where peaceful picketing was enjoined by a state court and the Court held that there was no labor dispute and no interstate commerce involved.

The separate injunction was made permanent.

The case was duly appealed to the Court of Appeals for the Eastern Section of Tennessee.

The case, after have been for some time, it was affirmed in the opinion of the Court of Appeals was fortified but then holding that the construction project was completed and the case was moved.

We get to the certiorari case to the Supreme Court of Tennessee.

The certiorari was denied and within certiorari, the case to this Honorable Court.

May it please the Court, the facts that precipitated this had been occurred as follows.

The Chattanooga Building Trades is composed of all the craft unions and it is interested all craft unions are in getting all the work possible for its members.

They knew back in 1960, that Jafco, was going to build a huge shopping center in the City of Cleveland, Tennessee.

It would cover several — equivalent of several city blocks.

It would have many tenants including a bank, bowling alley, chain stores and whatnot.

The unions carefully awaited to see who the prime contractor would be and finally, it was announced that the Rea Construction Company would be the prime contractor and they learned that the Rea Construction Company was from Charlotte, North Carolina.

As in all this type of cases and in this particular case, the Chattanooga Building Trades then called the Charlotte Building Trades, trying to find out something about this contractor.

Usually, they get an answer that a contractor is what they call a fair contractor or employs union man or he employs non-union man or a combination of some kind.

And they were informed on this particular occasion, that the Jones family had two corporations.

One was called the A.J. Jones Construction Company which was union.

They also had a sister corporation called the Rea Construction Company which was strictly nonunion.

And in this particular case, they learned that it would be the nonunion corporation that had gotten this particular job and soon after work started, the Chattanooga Building Trades considered putting a picket on the job to every task, the fact that it was nonunion to advertise about their working conditions.

But before they did, a business agent for the Hod-Carriers Union with by the construction site and talked to some of the laborers working there.

They were in the rough stages at that time, bulldozing and such.

The laborers said, “Mr. Elkins, we’re only getting a dollar in a half an hour on this job.

Can’t you please do something for us?”

And he said, “Well, I will see what can be done.”

He then went to the Chattanooga Building Trades, he learned that they had already considered placing a picket on the job and the next day, one picket arrived and again, patrolling the area.

But in just a few minutes, after the picketing had begun, the picketing was stopped by an ex parte injunction issued by a State Chancery Court.

S. Del Fuston:

We duly file a motion to have the case dissolved.

One of the defenses was the doctrine of preemption based upon this Court’s decision of San Diego versus Garmon and other relevant cases.

At the show course here and the judge that had issued an injunction, had another judge to set for him here and this judge refused to resolve the injunction until it final hearing.

We had the final hearing and the judge at that time had a lengthy opinion, held that there was no labor dispute by any stretch of imagination.

He held that interstate commerce was not involved.

He cited absolutely a no authorities, no decisions, nothing.

The only decision that is decided — that is cited in his entire opinion is a case involving intrastate commerce that is not even relevant to the case here.

The very next day, we had this case on the road to the Court of Appeals and we filed a motion in that court to move the case up because we were afraid that the construction project would be completed and we would not have an opportunity to have our case determined.

The Court of Appeals listened to us and then announced that they would not move the case up on the docket.

Later, the case came home for hearing in its regular term and we ordered the case at which then the court wanted to know when the construction project would be over.

And both counsel for the defendants and counsel for myself and asked to the court that duty in here, the lace whether one thing or another, it’d be a several weeks before the work would be over.

The Court of Appeals then held the case from September until the following January and then adopted the trial court’s decision verbatim and also added that the case was moot because the project had just been completed at that time.

And, we say if the Court please, that the case is not moot that there was a labor dispute and that interstate commerce was involved.

First of all, we think that the — this Court’s decision in the case of — of Marine Engineers versus the Interlake Steamship Company is controlling as to these terms, as true that the — this Court’s opinion was not available at that time, I think it was two or three months after this decision was written when this Court acted in that case.

But I used the precise language as identical in all my pleadings and it was the argument that I had made to each court and that is that the definitions of the terms under National Labor Relations Act should be left to the tribunal that Congress has chosen to administer the Act.

And this Court held that in the Interlake case as I understand it, that the — that the words or labor organizations defined by the Act and the state courts have no right to interpret that.

It should go to the N.L.R.B. Since that time and since that — since I’ve written my brief, there’s been another case by this Court.

It’s a Local 1207, Bridge Workers versus Perko, decided this summer and the opinioned by his Honor, Mr. Justice Harlan and it follows the Interlake case and says that, “An employee which defined by the Act, should be left to the National Labor Relations Board when a case of reasonable argument is made to that effect.”

That seems highly illogical to us that you should say that certain words that are defined in the Act should be left to the tribunal that has been chosen to administer the Act and that in this case, to say that other definitions appear in the Act should not be left to the same tribunal, and that would be labor dispute which is defined by the Act and it would also be commerce as defined by the Act.

In this particular case, the complaint was that we were picketing to cause a breach of contracts between these Jafco Corporation and Rea Construction Company or the Rea Construction Company and — and with other companies has been one of the — that business has been raised time and time again.

And in fact that we had a great deal — great deal of difficulty with that argument until the so-called Landrum-Griffin amendments to the Taft-Hartley laws were paced in 1959.

The Court, I’m sure, will recall that Section 8 (b) (4) (1), was left the same but a new Section was added which is 8 (b) (4) (ii).

And the (ii) Section says that it’s an unfair labor practice in so many words, if you attempt to cause a cessation of business between one person and another is very much more broad than just causing a breach of contract.

You can have a situation where two people just deal with each other without a written contract and it could be unfair labor practice.

And we say that, even if we take the statements that they say are true in their bill or complaint, that it is a matter they discovered by the unfair labor practice Section of the Act.

Of course, we contend that it’s protected activity under Section 7 of the Act.

And we say if the Court please, that the Interlake case and the Perko cases are authority for the proposition that this issue should be left to the N.L.R.B.

We went ahead and actually proved the time of trial — time came around that Rea Construction Company was involved in interstate commerce and just on this one project alone, that it purchased materials from outside State, mine to at least three times.

The jurisdiction or requirements set by the — by the N.L.R.B. and which was frozen by the Landrum-Griffin Acts of 1959.

But the court just ignored it and referred to those facts and referred to no decisions.

S. Del Fuston:

We beg if the Court please that the big question that we have here today is this question of mootness.

It’s a question that hovers over every one of these cases where you have a construction project because at sometime, you don’t know exactly when a construction project is going to be completed.

If the state court takes juris — jurisdiction which we say is illegal and arbitrary, we — there is nothing, we’re powerless to do anything and we can’t do anything except take it up to the state courts.

And you usually get best so far as your Court of Appeals in your State, when the project is completed, if you get that fat at all, and that court acts and thereafter, you can’t go to your State Supreme Court.

It’s — they say, “Well, the construction project is over the question is moot, we will not hear you.”

Now, we say that the question is not moot for three reasons.

In the very first case that arose under the Act, my law partner Mr. King who was here yesterday and introduced me held before the Board, that case by different rounds went to the Supreme Court of Tennessee where we got a ruling which I have cited in my brief under Watson Versus Wilson, it also went the Board route through the Sixth Circuit to this Honorable Court, for we had decision or other issues.

But the facts in that case were briefly this.

They had a speculative contractor in Chattanooga who was building houses and the unions, the Chattanooga Building Trades and especially the carpenters decided to put a picket on one of these construction projects.

And on the day before the 1947 Act went into effect, picketing stopped and the next day, the prime contractor went to the Board wanting a cease-and-desist order.

And based upon those facts, this Court held in the first case that it could have acted on a state of facts similar to what we have here today, that the underlying dispute had not been resolved and therefore, the Board was entitled to the injunction.

Now here, we come here several years later and the — she was on the under court.

We think that at this time since the matter is arguably before the Board in the first place and since the underlying dispute has never been resolved, that for that reason, the case is not moot.

Another case that somewhat similar to it was a case that we did not have at the time that we order a brief which was decided this summer by this Court is the case of — Division 1287 Street Electric and Motor Coach Employees versus Missouri and the case was written — the opinion is written by his Honor, Mr. Justice Stewart.

And in that case as we read it, there was an Act by the Governor of Missouri and they had action in the state court and this — in the state — the court states that the very threshold meant with the — with the question of mootness.

And because where time that the case got to this Honorable Court, the Governor had removed his authority and taken over the — the business of public utility in — in that State.

And in the opinion of this Court again stated no less than three months ago, that the case was not moot because the underlying dispute had not been resolved between the parties.

And we say for that reason that the case was not moot.

For our second reason, we say this, —

Why — why — could I ask you a question?

S. Del Fuston:

Yes.

You say the underlying dispute here has not been resolved, what you’ve claimed?

S. Del Fuston:

Yes if the Court pleases.

This particular company is making bids on all of the projects in the same area and in their sworn petition to the Supreme Court of Tennessee which we have set out in the record here, the appropriate official of the union stated that he — that it was — the desire of his union to picket the same company under the same facts, under the same factual situation, but he would be prevented doing so unless he received relief through the courts or for this reason if the Court please, if the Rea Construction Company gets another project, decided to put on an informational picket, goes before the — same judge, you can only expect the same decision, get to the Court of Appeals, the project is completed and you got the same thing over and over again.

That would be another case, wasn’t it?

S. Del Fuston:

It would be or another — on another project just as it would be in case number one if the Court please, in the Watson case or the Carpenters case as it’s down here at Local 74 versus Carpenters which I’ve cited in my brief because this man was a speculative builder, building houses.

And when he complete at the house or the house was completed, he had to go somewhere other — lot to build a house but this Court said that, “You still have the same dispute that existed.”

Would be — am I right to think that this particular injunction is not breached by the similar (Inaudible) on certain projects?

S. Del Fuston:

That is the question that I — I don’t know the answer to.

It probably — probably wouldn’t but you could expect the same result.

And the injunction is in the record?

S. Del Fuston:

Yes, it is.

I do know this but I thought it was so broad at that time that this construction was going over — going on, that the carpenters had a dispute with the — runs with people out of some state in regard to the bowling alleys and I feel at that time that the injunction was so far reaching that they could not place a picket on the job.

Hugo L. Black:

Was there any injunction bond given?

S. Del Fuston:

Yes, if the Court please, and we think that’s — another reason we think that the case is not moot and there’s been considerable court cost in this case that — that it will have to be borne by the losing party.

There are attorney’s fees and other things of that nature involved and we think for that reason, that the case is not moot.

Hugo L. Black:

Is there a cause of action in your State by malicious issues of injunctions, obtaining malicious issues of injunction?

S. Del Fuston:

Yes, if the Court please and there’s a dispute of authority as to what your action is in case the court issued an injunction where you do not have jurisdiction of the subject matter.

There’s no reason — case since — I think after 1900 on that proposition.

The whole cases are very much in dispute only.

William J. Brennan, Jr.:

Mr. Fuston, may I get back a moment?

S. Del Fuston:

Yes.

William J. Brennan, Jr.:

In first ground, I gather and which were relying on — in Watson is that language would be used in such pressure and this project was merely a sample of what might be repeated elsewhere if not prohibited, the underlying dispute between petitioners and Watson’s has not been shown of any result.

S. Del Fuston:

Yes.

William J. Brennan, Jr.:

My question is, did you make on — any kind of record that — would indicate this with only a sample?

S. Del Fuston:

The record if the Court please, is only in our sworn petition because at the — at the time that the case was decided, the case was not moved actually — and did — actually, there were some painting and — and more — more things going on at this building project and lasted about a week.

But we do that — that time we got a petition back to the Court, it wouldn’t be completed.

So in our sworn petition to the Supreme Court which is for this record, oath was made that — that the same thing would occur all over again and it was our desire to picket the same company under same — under similar circumstances in the future.

William J. Brennan, Jr.:

Was this injunction originally ex parte?

S. Del Fuston:

Yes it was.

William J. Brennan, Jr.:

An affidavit’s ex parte?

S. Del Fuston:

Yes and it amazes me how quick they’ve got that out.

It must have been prepared in offense because the attorneys for the plaintiff live in Chattanooga, the courthouses in another county some 30 miles away, the judge lives, we have the Circuit in another county and I think that picket stayed out there about 10 minutes.

Somehow the — the —

William J. Brennan, Jr.:

You mean (Voice Overlap) —

S. Del Fuston:

When it got to the hands of the — of the Judge.

It was signed, it was in the clerk’s officers — offices and the — sheriff was out there within 15 minutes after the picket got there.

William J. Brennan, Jr.:

Do you mean they had some foreknowledge that this might be as —

S. Del Fuston:

I assume that he did.

Byron R. White:

Well, was a great construction company or that — that’s — that’s really the concern that you were picketing?

S. Del Fuston:

That is really the concern we were picketing.

Byron R. White:

Is that a local (Voice Overlap) —

S. Del Fuston:

No, that’s from Charlotte, North Carolina.

It has branch offices in Orlando.

It’s a big construction company.

Byron R. White:

Was it — it’s just been here — in here for one job and —

S. Del Fuston:

It was in for this one job of this particular time.

I know — do know they were bitting on a railroad job whether they got in that, I don’t recall.

Byron R. White:

Was it ever been there before?

S. Del Fuston:

All I know is that at the time they were bidding those some — other jobs — jobs in that area.

Byron R. White:

But the record just — (Inaudible) whether this might or not might occur again with great construction in — where is this place in Chattanooga?

S. Del Fuston:

In Chattanooga and within an area of — 100 miles around Chattanooga.

Byron R. White:

But did the record, you may know that was in the Supreme Court?

S. Del Fuston:

I beg your pardon.

Byron R. White:

The record you may know, it was in the appellate court.

S. Del Fuston:

Yes, it was.

The — as far as the desire to picket this company in the future.

William J. Brennan, Jr.:

Is that on — that’s in the record is it Mr. Fuston?

S. Del Fuston:

It is in the — in the record and —

Byron R. White:

Where is that?

S. Del Fuston:

I’ll try to find it when opposing counsel is — I will take I guess a little time — I guess — I’ll believe, I’ll be able to do it just two or three minutes so.

We think for another reason —

Hugo L. Black:

Is the record here?

S. Del Fuston:

Sir.

Hugo L. Black:

Is the bond here?

S. Del Fuston:

I forgot Your Honor.

I’ll be glad to check that out too.

I know that it’s your —

Hugo L. Black:

But the entire record setup here besides that which you think —

S. Del Fuston:

Yes, the entire record is here.

S. Del Fuston:

Besides —

Hugo L. Black:

It’s here on file.

S. Del Fuston:

Yes, yes, Your Honor.

As your research most in the case of this Court, (Inaudible)

S. Del Fuston:

No, I haven’t.

The only case I did make inquiry of some other attorneys throughout the country, I thought that might have had such a case here and the nearest case that I had on this mootness question was the one presented by Dave Privett on Milwaukee in the County of Door case which I have also said in my brief.

And I think it’s under Mr. Justice Frankfurter raised the question in that particular case from what Mr. Friedman tells me and the question was raised but there’s nothing in the decision of this Court concerning the mootness?

(Inaudible)

S. Del Fuston:

I beg your pardon.

(Inaudible)

S. Del Fuston:

It’s — it’s set forth in my table of cases —

— right after.

S. Del Fuston:

— County of Door — it’s 350 — 9 U.S. 15, I’m sorry Your Honor it’s a wrong turn there.

Now, there’s another that we have in this case that has not been presented as —

Arthur J. Goldberg:

(Inaudible)

S. Del Fuston:

Yes.

Arthur J. Goldberg:

(Inaudible)

S. Del Fuston:

Yes.

Arthur J. Goldberg:

(Inaudible)

S. Del Fuston:

We’d have to sue on that one?

Arthur J. Goldberg:

(Inaudible)

S. Del Fuston:

It’s my understanding Your Honor.

Arthur J. Goldberg:

(Inaudible)

S. Del Fuston:

But we are going to make that claim.

That is another question that hasn’t been determined in years in our — in our State.

Arthur J. Goldberg:

(Inaudible)

S. Del Fuston:

Yes.

It is in — in the record.

Now, there’s another — a reason if the Court please that we think that — that the case has not moot and that is in the State of Tennessee, we have a declaratory judgment statute.

That clearly, a higher court has the right to review any question and give her advisory opinion.

S. Del Fuston:

Now, if the Court of Appeals for the Eastern Section had said the case is moot, we refuse to consider it any further, that would have been one day.

But the Court of Appeals said the case is moot but in spite of it being moot, we hold that this picketing was illegal and they made some more statements about it and then they stated that they adopted the decision of the trial court.

Now, if the Court of Appeals has a right to give an advisory opinion and certainly, it seems to us that a higher court has the privilege to redo that advisory opinion as to ascertain whether or not they gave the correct advisory opinion and we say for that reason, if the Court please, that the case is not moot.

In short, the Court please, we feel that this as a case as very similar to all these picketing cases that we have involved in construction projects.

We have this — this question of mootness always hovering over and because we can’t get them up fast enough.

For example, in about three weeks I think that you’ll have the — keep your birthday of Garner versus Teamsters as I recall, it was about the middle of December 1953 when this Court rendered the opinion on rather famous case now.

I know I was in Charlotte, North Carolina on that occasion or in the — the same kind of case before the Superior Court in Charlotte, North Carolina.

And if you will look on the date that the — that the Garner versus Teamsters case came out, you’ll find that it made the headlines in the Charlotte Observer.

And I was eating my lunch and I had the case argued about this time of the day and I was arguing the case of preemption to the — to the Superior Court there where they were building the airport and argued it with the newspaper in my hand.

The opinion I got from the Charlotte paper was very short but I was familiar with the decision of the Supreme Court of Pennsylvania and it stated in the article that — that that court had been affirmed and I was arguing that was the — that was, I had that case and — a case of Oliver versus (Inaudible) of Tennessee.

I think that Tennessee Supreme Court actually was the first state court from my research that written as a doctrine of preemption.

And with those two cases and with the newspaper clipping that I had, I was arguing preemption to that court down there.

As soon as I got to of to the argument, I felt pretty good.

I wanted to stand up and get the decision of this Court, have it flown back in for the — for the trial judge the next day.

And if you’ll read the next issue of the Charlotte Observer, you will see that this judge granted the injunction with the remarks, “Mr. Fuston, I going to grant the injunction in this case and you can take me to the Supreme Court and reverse me.”

But in the meantime, our airport will be built.

And he was absolutely right because at all of these cases, you have this question of whether or not you can get a case up to a higher court before the project is completed.

Now, we say if the Court please, that on a basis of the decision of this Court since the Garner case that this is a case in which the opinion of the Court of Appeals of the Eastern Section of Tennessee should be reversed.

Thank you.

Earl Warren:

Mr. Chambliss.

John A. Chambliss, Jr.:

May it please the Court.

Before I begin to talk, I would like to say something.

This is indeed a small world.

This is the first time I’ve had occasion to come before this Court and one of the cases this morning came from the Court of Claims on which my Uncle Sam Whittaker has become a fixture and it was very interesting and difficult case.

The other one came from Louisiana where my wife was born, where I visit frequently.

And I couldn’t but think as I listen to that case on the fact that although I’m not a Chinese, I have a Chinese godson in Hong Kong and should he wish to run from office in Louisiana, I would hate to think that he would have to designate himself as a Mongoloid.

Now, with those remarks back, I mean, I will turn to discussion of the case at bar.

The most delicious part of having a case before this Court is that as my friend and hero, Mr. Justice Vanderbilt once said, “This Court is of necessity more interested in what the law ought to be than in what the law is, not own any purely ad hoc basis but on the basis of our scheme of ordered liberty.”

Now, law is of course a substitute for warfare.

It is the modern equivalent of war, we hope.

John A. Chambliss, Jr.:

And you are of course interested in the rights of people and we remember it all the times that one’s rights end where one’s wrongs begin.

This Court has very difficult cases to hear and to decide.

In this matter of peaceful picketing for example, it was first held by this Court that peaceful picketing was tantamount to free speech and then it was later recognized that that was not true, that peaceful picketing is more than free speech.

Now, the case we have here today does not involve a claim of the right of picketing on the ground of free speech.

It involves rather only the issue of preemption.

That is the only thing involved here and it’s based upon such cases as the San Diego Building Trades Council case, the Engineers Association case and the current case from Atlanta which is very close to kin to the case at bar, but is quite distinguishable.

All of these cases held, that a situation that is arguably one for the National Labor Relations Board must be handled by the National Labor Relations Board.

Now, it’s true that the Engineers Association case went a bit further than that, by saying that it must be reasonably arguable.

Now in this case, we think that it is not reasonably arguable.

One of the facts in this case, Jafco wished to build a $2 million shopping center in Cleveland, Tennessee.

They made a contract with Rea Construction Company of North Carolina to do the job and this is a company that operates on an open shop basis.

It is not nonunion, it is not union, it is on open shop basis, this appears in the record.

Rea Construction Company in turn, contracted with the (Inaudible) to do the grading on the job and they went out there with this heavy earth moving equipment to do the grading on the job.

A picket was placed, one single peaceful picket, bearing a sign in which it is stated, on which it was stated, “Rea Construction Company not under contract with Chattanooga Building Trades Council, Rea Construction Company not under contract with Chattanooga Building Trades Council.”

Now, that picket was not removed in a manner of minutes.

As a matter of fact, after the picket got there, my associate counsel in Cleveland called me, came down to Chattanooga and as I recall it, it was not until a day later that we were able to get the bills on and go the Chancellor.

We went to the Chancellor because we felt on the basis of what we could see with our eyes and incidentally after that picket was placed immediately, all of these union heavy equipment people walked off the job.

The Lewis Brothers people left because they were afraid not to.

They were afraid of reprisal and the whole job was shutdown.

The job had a deadline, it had a time limit and the whole thing was shutdown completely.

We filed this bill in Chancery and in Tennessee, we still have separate Courts of Chancery and law and we sought an injunction because we say that the picketing was seeking a breach of a contract that existed between other people.

And there, you see statute in Tennessee that provides that that is unlawful and provides treble damages therefore.

We also said that this picketing sought to effect a violation of the Tennessee right-to-work law, such as was insisted in the Curry case, because in Tennessee it is illegal to distinguish between union and nonunion employees.

We also ask damages for what we regarded as the illegal picketing.

And in the course of our bill, we charged in paragraph 7 that there was no labor dispute in existence between the plaintiffs and the defendants

William J. Brennan, Jr.:

May I ask what happened to the damages (Inaudible)?

John A. Chambliss, Jr.:

That has never been determined Your Honor, because they —

William J. Brennan, Jr.:

They still open —

John A. Chambliss, Jr.:

Yes sir, that is still open.

William J. Brennan, Jr.:

In this very litigation?

John A. Chambliss, Jr.:

Yes sir, that is still open.

We were — the Court of Appeals may it please the Court, stated that we would be entitled to damages because they said it was malicious under all the circumstances and facts to the case.

William J. Brennan, Jr.:

Well then do I understand that if you prevail here, you may now go back and tryout request for damages?

John A. Chambliss, Jr.:

Yes, Your Honor.

That’s my mistake.

William J. Brennan, Jr.:

What — what have you move this argument?

John A. Chambliss, Jr.:

I don’t know that there is anything.

I would not insist in the mootness Your Honor.

William J. Brennan, Jr.:

You would not?

John A. Chambliss, Jr.:

No, sir.

Now, the answer in this case, the answer in this case did not — did not reply at all to this question of whether there was a labor dispute.

In our Chancery procedure down there, we state our points paragraph-by-paragraph and they’re answered paragraph-by-paragraph.

In the answer in this case, they completely ignored the charge that there was no labor dispute.

They just did not answer that at all.

They did deny in their answer that they were seeking to affect a breach of a contract.

They said, “We’re not interested in affecting a breach of contract.

They did deny that they were seeking to have union people hired.

They said, “We’re not seeking to have union people hired there.”

They asserted and this is on page 14 of the transcript.

They asserted this, “These defendants which show to the court that the purpose of the picketing is to inform members of organized labor in Cleveland and vicinity, sympathizers of the labor movement and the public in general, that the complainant’s project is not under contract with appropriate bargaining labor organizations.

The effect that is sought is that persons who hire contractors hereafter.”

I remind — I remind you, this is their sworn answer.

This is all they were seeking.

The effect that is sought is that persons who hire contractors, hereafter, will know which are union contractors and which are not.

If those people desire to hire such contractors as complainants, they’re so informed.

Now, that was their answer.

We then took the discovery deposition of the leader of the defendant group because we wanted to pin down just what the purpose of this picketing was and so we took the discovery deposition of one C Earl Williams.

He is the same person who had sworn to this answer.

And the reason we wanted to pin him down was this, my opponent — and I have been going around and around in this field for some years, we’re a little bit like Tony Canzoneri and Barney Ross use to be.

And he adverted to the Watson case which was my case and to the Carpenters case which came up here and that was my case and we had another case down there a few years ago, in which again at Cleveland, Tennessee, a picket was placed which forced the breach of a contract between a nonunion contractor whom I represented and the people who’re having the job done, and the job was taken from my man and was given to a union contractor and my man then brought suit and we tried the case, and my man collected treble damages for they’re having done this to him.

John A. Chambliss, Jr.:

And they were very anxious to avoid getting themselves in the position of again being liable for treble damages, and so they made it very play in their answer and then their sworn testimony, that they were not seeking a contract.

In fact they said, “We’re not seeking anything.

We don’t want anything.

We have no dispute with these people.”

And that is the literal language of the chief defendant here.

We have no dispute with these people, we don’t want anything, we don’t want a contract, we don’t want to bargain with them about wages, hours, and working conditions, we don’t want anything.

Now, when I took his deposition on page 54 and 58, 59 and 60 of the record, I asked him this, I said, “Did you have any interest in whether Jafco had a contract use union labor our interest was that?”

“Yes, sir.”

Question – “Did you do anything about it?”

“No sir.”

“Did you take any action at all with reference to Jafco and his job up here that was being done?”

Answer – “I don’t know what you mean find the action.

Do you mean that I came and talked to Jafco?”

Question – “Did you come or anyone else from the labor organization come that you know of?”

Answer – “I don’t know, I didn’t come and talk to any body.”

Question – “Do you know of anyone else who did?”

Answer – “I don’t know.

No, sir.”

Then again, he — he said that he was unhappy because they were paying a certain rate and I said to him, “Did you say on your picket sign or did you do anything about advertising the rates they were paying?”

No.

I said, “Your only sign there now was that they’re not under contract, you said yes.

And that they were interested in — if advertising to people that we hooked on future contracts, similar jobs that it would have an effect.”

Now, he — he, therefore, skirting around the question of seeking anything which of course was involved in the Curry case directly, I mean, they were seeking something.

They frankly admitted that they have a labor dispute.

The union had gone to see the employer and they — they have a labor dispute there.

But in this instance, there wasn’t any that — of that.

Now, after this discovery deposition was taken and before the trial, opposing counsel, on behalf the union, wrote to the National Labor Relations Board and asked if they would take jurisdiction of the case like that, and the Board replied that they didn’t know whether they would allow it.

Now on the basis of all of this, our Tennessee courts then proceeded to hold that first, there was no labor dispute.

Second, that the picketing was an unwarranted interference since the picketing people sought no gain from the thing at all, as far as these people were concerned, that it was unwarranted interference.

And then the Court of Appeals also held that the case had become moot.

Arthur J. Goldberg:

(Inaudible)

John A. Chambliss, Jr.:

Yes sir —

Arthur J. Goldberg:

(Inaudible)

John A. Chambliss, Jr.:

Yes, Your Honor —

Arthur J. Goldberg:

(Inaudible)

John A. Chambliss, Jr.:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

John A. Chambliss, Jr.:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

John A. Chambliss, Jr.:

Your Honor please, the Court of Appeals and its opinion went beyond there.

This is on page 98 and it says this, “Defendants say that when they placed this picket on the line, it was merely to education.

We cannot accept that explanation which does not explain.

They knew that when this picket was placed at this entrance to the work that it would result in union employees refusing to cross the line and this is exactly what happen thus causing a complete work stoppage.”

In short, we find that the action of the defendants was frightful and malicious and in an attempt to injure both Jafco Incorporated and Rea Construction Company.

What has been said requires the affirmance of the decree below with cost against the appellants and surety on appeal bond.

Your Honor please, they do not specifically say that we could collect damages.

I thought that they did, but there’s no language in their and I think that perhaps we could not under those circumstances.

Arthur J. Goldberg:

(Inaudible)

John A. Chambliss, Jr.:

I — I think that Your Honor is probably correct.

I’ve been under the impression that the language of the Court of Appeals said that it would be remanded for the question of damages, but they did it.

Now, I would like to distinguish just very briefly, this — this Curry opinion which Mr. Justice White handed down last January.

In that case, the unions involved visited the respondents.

In other words, they went to see them.

They talked to them about the situation.

According to the respondents, the union urged the hiring of union personnel.

Now, according to the union that was not so.

They say that they requested them to raise the pay scale.

But in any event, there was a communication.

There was a demand any refusal so to speak and there was a labor dispute.

Now then, the lower court of course denied an injunction on the ground of preemption as it turned down ultimately properly so.

John A. Chambliss, Jr.:

The Georgia Supreme Court reversed and then this Court held that there was an arguable case there of jurisdiction for the National Labor Relations Board, a reasonably arguable case.

Now, what is a labor dispute?

In our brief which is extremely brief, on page 2, I quote the Act itself.

And this is what the Act says is a labor dispute and we say it does not fit the situation, “Any controversy concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining changing or seeking to arrange terms or conditions of employment, regardless of whether the dispute in stand in approximate relationship of employer and employee.”

Now, we say that, that just doesn’t fit here.

They were not interested, there was no controversy, you don’t controvert with someone that you have no contact with.

You make no demands upon.

There’s no controversy there.

And we say that there is no labor dispute there.

Now, had they chosen to stand, may it please the Court, on what their picket sign said, Rea Construction Company, not under contract with Chattanooga Building Trades Council?”

Then, it would have been a picketing for representation for a union contract and that obviously, would have made an arguable case from the National Labor Relations Board.

But did they do that?

No.

They refuted that in their sworn answer and in their sworn testimony.

They said that’s not really what we mean.

That’s not what we’re after.

We’re not interested in representing, we’re not interested in discussing wages, hours or working conditions or anything like that.

And so, they swore in their answer and in their testimony that they did not seek any of these things and we say when they get back, that they cut themselves off from this business of preemption.

It seems to us that it is not fair or legally sound for them to say, we seek nothing from this employer and we have no desire to hurt him.

Therefore, he can’t sue us in the state court.

And yet, because we may really be some — seeking something from him and we may really be seeking to damage him after all, this is a matter for the National Labor Relations Board.

They are in effect seeking to get themselves into a vacuum.

But the trouble is in their testimony, they blow hot and cold and the law doesn’t like a vacuum.

And when you blow away, you do away with the vacuum anyway.

There is no vacuum left because there’s atmosphere there and there’s a great deal of atmosphere in this case.

We think that this case should be distinguished and affirmed.

Earl Warren:

I notice in your reply brief that you rely heavily on the fact that this — this case has been mooted for approximately a year and a half?

John A. Chambliss, Jr.:

Yes, sir.

And it had not occurred to me until the argument today when I was asked the question about damage that that proposition might still be in it, and I remembered that we did asked for damage and that possibly that would keep from being moot.

That had not occurred to me when I wrote the brief.

Earl Warren:

Well, you’re very clear on your mind now, although this case is not moot.

John A. Chambliss, Jr.:

I would say Your Honor in the light of what’s been brought to my attention by Mr. Justice Goldberg that it is moot because there is law, no longer any question of damaging.

The final decree of the lower court, the final decree of the Court of Appeals does not give any reference for damages and since they do not, I think, I’m cut off from that and I think the case is with —

Hugo L. Black:

But they’re — they are not are they?

John A. Chambliss, Jr.:

Sir?

Hugo L. Black:

They are not cut off, are they?

John A. Chambliss, Jr.:

I don’t know Your Honor.

Hugo L. Black:

Well, you have bond?

John A. Chambliss, Jr.:

Oh, on — on the question of bond, the question was raised about that.

And on the matter of a bond, if a bond is wrongly issued, the court can give a reference to a master on the question of the wrongfully suing out of an injunction, in other words, if it is without cause, if it was you know, malicious or anything like that, that can be a reference to a master.

Hugo L. Black:

Something like a —

John A. Chambliss, Jr.:

Sir?

Arthur J. Goldberg:

How can a judgment reversed —

John A. Chambliss, Jr.:

Well, it’s a question of — it’s a question almost of — of the intent at the time the thing is done, the good faith you might say in — in seeking the injunction.

Arthur J. Goldberg:

What’s the matter (Inaudible)?

John A. Chambliss, Jr.:

That would be up to the judge may it please the Court, to the Chancellor as I understand it and he would order a reference.

As a matter of fact, I have a reference down home right now in connection with the patent case where an injunction was sued out and the injunction was later dissolved and there’s — yes.

Arthur J. Goldberg:

(Inaudible)

John A. Chambliss, Jr.:

That’s right, yes.

William J. Brennan, Jr.:

Well, do you — I’m not quite clear about this bond.

If this case should be reversed, is there a bond outstanding on which the petitioner her might seek recovery —

John A. Chambliss, Jr.:

Your Honor —

William J. Brennan, Jr.:

I mean —

John A. Chambliss, Jr.:

— please, there is an injunction bond —

William J. Brennan, Jr.:

I mean this —

John A. Chambliss, Jr.:

The exact terms of that bond, I do not recall.

William J. Brennan, Jr.:

Well, I gather, your client had to post it for the —

John A. Chambliss, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

So that if in consequence to the issuance of the injunction, this is on a hypothetical —

John A. Chambliss, Jr.:

Yes, sir.

William J. Brennan, Jr.:

— without suggesting of course, one way the other what the —

John A. Chambliss, Jr.:

Sure.

William J. Brennan, Jr.:

— result will be.

Well, let’s say, should be a reversal here.

I think that might be the predicate for an action against your client on the bond?

John A. Chambliss, Jr.:

It’s my understanding that it could be.

Now, as to the legality of it of the ultimate outcome of it, I don’t know, but I —

William J. Brennan, Jr.:

Well, my question then is if that’s the fact, how could this case possibly be moot?

John A. Chambliss, Jr.:

Your Honor pleases, as I said sometime ago, the question of whether it is moot or not doesn’t really make a great deal of difference to it.

Hugo L. Black:

May I call your attention to that fact that this Court held some years ago that District Court failed to consider and assess damages at the injunction that’s been issued wrongfully, with guilty with abusive use of the discretion to the (Inaudible), so that there is still the question of damage here.

John A. Chambliss, Jr.:

Yes, yes.

I think that — I think it is a matter of discretion.

Of course, if they abuse the discretion, that’s another matter.

(Inaudible)

John A. Chambliss, Jr.:

Your Honor, that — that is correct now, I think that my fellow — my counsel here on the other side, there’s our Court of Appeals great injustice and insinuating that they held this case and sat on this case deliberately until his job was over.

I — I don’t go along with that at all.

I think that there is a great deal of merit and a court’s taking the position that in a situation like this, wherein — in effect, no damage is being done to these people except their denial of the right of free speech and they’re not even suing for their right of free of speech.

I don’t see how there could be any — any — any damage actually.

They don’t predicate this on free speech.

And I — I feel that the case is over and the — but — but however Your Honor’s feel about — I mean after all that — that’s up to you as to whether there’s moot there’s not.

Hugo L. Black:

What would be damage on the bond irrespective of free speech (Voice Overlap) —

John A. Chambliss, Jr.:

Only Your Honor, if we were guilty of bad faith as I —

Hugo L. Black:

If it was wrongfully issued.

John A. Chambliss, Jr.:

Yes, sir, if it was — if it was wrongfully issued and — and the matter of good faith enters into that.

You see on the basis of their picketing, we had every reason to believe that they were picketing to secure to breach of a contract because that’s where their picket sign said.

Now, they come into court they say that’s not what we’re after.

Thank you.

Earl Warren:

Very well.

S. Del Fuston:

Unfortunately, I wasn’t able to find the page in the credit record up to where the State was made that we desired to picket the same company in the future.

I do know it was made on page 15 of my brief before this Court.

S. Del Fuston:

I made the statement it is the desire the petitioners to picket the respondents of the future of the same omission —

William J. Brennan, Jr.:

Well, Mr. Fuston, may I — I’ve look that it was since I asked you the question.

I don’t find anything but that one affidavit which precedes the opinion of the — of the Court of Appeals.

But I noticed it’s quoted it.

I gathered from your brief on page 97 something in which you suggested in your brief in the Court of Appeals, the intention or desire to picket one of the complainants Rea is coming for on a project which will require approximately six or eight months of (Voice Overlap) —

S. Del Fuston:

That is it and Mr. Raymond Floyd made oath to that, I remember that.

William J. Brennan, Jr.:

And the court went on to say that they weren’t in the business of rendering advisory opinions and therefore, what was going to happen in the future was is no concern of the Court of Appeals.

S. Del Fuston:

That is —

William J. Brennan, Jr.:

Is that what you have reference?

S. Del Fuston:

That’s what I have reference to Your Honor.

I believe I haven’t my argument unless the Court desires to ask some further questions.

Earl Warren:

Very well.