Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board – Oral Argument, Part 3: NLRB cases – March 12, 1958

Media for Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

Audio Transcription for Oral Argument, Part 1: NLRB cases – March 11, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Earl Warren:

— Local 850, International Association versus National Labor Relations Board.

Mr. Manoli, you may continue with your argument.

Dominick L. Manoli:

May it please the Court.

On the Court arose yesterday, I was making the point that Congress was aware of these hot cargo agreements between employer’s and unions and was also aware of the practices of these unions to invoke these hot cargo labels, these hot cargo contracts and appeal directly to the employee’s not to handle disfavored goods.

We believed that Congress intended to draw no distinction between union appeals to the employee’s where there were no hot cargo contracts between the union and the employer and situations where there are.

The statute itself, as I indicated briefly yesterday, the statute itself Section 8 (b) (4) (A) of the statute broadly prohibits secondary work stoppages for the purpose of compelling some other employer to yield the union’s demands or because these goods are disfavored.

Where Congress wanted to draw an exception to the broad reach of Section 8 (b) (4), it did so expressly.

Thus, for example, in Section 8 (b) (4) (B) the companion Section to 8 (b) (4) (A), Congress withdrew from the reach of Section 8 (b) (4) (A), secondary work stoppages for the purpose of compelling an employer to recognize a certified bargain represented.

Similarly, in Section 8 (d) of the statute, which deals with jurisdictional strikes, Congress again expressly, removed from the reach of the statute such strikes where the employer was failing to honor a board certificate or a board order.

And finally, in the proviso to Section 8 (b) (4) itself, Congress expressly removed from the reach — if, Your Honors are looking for the statute, it’s at page — at page 66 of our brief.

The proviso that I’m speaking of, page 67 about the middle of the page, that in that proviso to Section 8 (b) (4), Congress specifically removed from the broad reach of Section 8 (b) (4) (A), refuses to cross a picket line at a primary employer’s place of business which had been established by the recognized bargain representative of the employee’s.

Now, it seems to us that these expressed exceptions for the broad reach of Section 8 (b) (4) (A) suggests that if Congress had wanted to remove union appeals, the union inducements to the employee’s to engage in a secondary or sympathetic work stoppages where there was an existence a hot cargo contract between the employer of the union that it would have expressly made such an exception.

Now, Congress certainly knew how to do that and I think that this is illustrated by the proviso to Section 8 (a) (3) of the statute.

Section 8 (a) (3) of the statute deals with discrimination by an employer on the basis of union membership or non-membership.

Congress wanted to remove from the broad reach of that Section, union shop contracts, and it expressly provided in the proviso to Section 8 (a) (3) that such contracts when entered into executed under the circumstances indicated in the statute itself that these contracts which of course compel the employee’s to join the union after certain period of time that they were removed from the broad reach of Section 8 (a) (3).

So here, I repeat, that certainly, Congress knew how to do it, that if they wanted to remove secondary work stoppages from the reach of Section 8 (b) (4) (A) where there were — was an existence a hot cargo contract between the union and the employer, it seems to us that the most natural thing would have been for Congress to have said so specifically.

It did and the fact —

Earl Warren:

Does that — does that mean, Mr. Manoli, that you consider that they are — they’re illegal, such clauses?

Dominick L. Manoli:

Your Honor, the statute does not in turn make these contracts an unfair labor practice.

Earl Warren:

But what is your position as to whether they are illegal or not?You say Congress did outlaw them.

Now, if it did outlaw them, did it make them illegal?

Dominick L. Manoli:

It did not outlaw them, but it did not affirmatively sanction them.

Now, the Board’s position on that is this, Your Honor.

A majority of the board, in these cases have concluded that while Section 8 (b) (4) (A) does not in turns outlaw the making of these contracts that nevertheless the statute prohibits the inducement of employee’s without any qualification based upon these contracts and that the — when the union, it goes to the employers and makes direct appeals to the employee’s to engage in the sympathetic work stoppages that the union has violated the statute.

William J. Brennan, Jr.:

Well, in what circumstances are they enforceable in this case?

Dominick L. Manoli:

Well, Your Honor that raises a very nice question as to whether they are enforceable at all in a court of law.

I suppose that the answer to that problem will depend largely upon what this Court does here.

But if we are correct in our appeal —

William J. Brennan, Jr.:

Oh, I mean, on the Board’s decision.

Dominick L. Manoli:

Pardon me?

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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William J. Brennan, Jr.:

Under the Board’s position, are there any circumstances in which they might be enforced?

Dominick L. Manoli:

Under the Board’s position, the Union might perhaps go to the employer, employer directly and appeal to him to abide by this contract.

What is wrong in the Board’s view is that the Union is going directly to the employee’s.

Board says — the Board, “The Union cannot go to the employee’s because the statute flatly prohibits that kind of conduct.

The Union possibly might appeal to the employer himself and there is nothing we could do under those circumstances.”

William J. Brennan, Jr.:

Well, you mean by that that if the employer agrees then that the bound by the bars, the employer may refuse to handle and the employee’s may refuse to handle.

Dominick L. Manoli:

The employer may refuse to do so and he may order his employee’s not to handle these goods, but the Union may not do so.

William J. Brennan, Jr.:

And in that circumstance, there’d be no violation of any kind to the employee’s view?

Is that it?

Dominick L. Manoli:

That’s correct.

Now, I might add this, Your Honor, that one member of the majority of the Board believes that these contracts against the policy of the statute.

Now, however, though, it is conceded that even though these contracts may be against the policy of the statute that nevertheless, Section 8 (b) (4) (A) does not reach the making of these contracts or does not reach the employer’s carrying out the contract, but that’s what the statute does reach, as I say, is the Union’s direct appeals to the employee’s.

There is no qualification in the statute with respect to such appeals based upon the existence of a contract between the Union and the employer.

Felix Frankfurter:

It wouldn’t be unique in the law that things that are not illegal in the sense of unlawful nevertheless in certain circumstances don’t get legal sanction.

Dominick L. Manoli:

That’s right, Your Honor.

Felix Frankfurter:

A restricted covenant of the case in point.

Dominick L. Manoli:

Correct, sir.

Correct.

Now, the further fact that suggests to us that the Congress meant to draw no distinction between situations, whether it’s a hot cargo and whether it’s not, Senator Taft’s explanation of — one of the — an explanation that he advised and the course to debate on the Senate floor, he said that the Committee, the Senate Labor Committee have heard testimony for weeks as to the difference between good and secondary boycotts and that nobody had ever succeeded.

So he said, “Had ever succeeded and explained to them the difference between these different types of boycotts.”

And so he said, “We have made all of these secondary work stoppages an unfair labor practice.”

Now, the argument is made and we’ve already touched upon this in answer to Mr. Justice Brennan’s question.

The argument is made that these contracts are not on law and that therefore, if they’re not unlawful, there should be no reason why the Union under — could not invoke this contract and appeal to the employer’s directly to do what the contract presumably permits the employee’s to do, that is to refrain from having disfavored goods.

Earl Warren:

Now, if you have — if you have this kind of a clause, how could they enforce?

It is against the employer if they didn’t force against the employees.

Dominick L. Manoli:

Your Honor, assuming that we are correct in our view that these clauses do not permit a union to go to the employee’s and even though it may be true that the statute does not outlaw the making of these contracts.

Nevertheless, if a union were to go in court, let’s say Section 301, seeks specific performance to this kind of contract.

I think the problem would be raised whether these contracts are not against the policy of the statute that there are way of circumventing the protection which a statute, as I will point out later, which a statute intends to give to the public to other employee’s at large and possibly and I am only speculating on this because it’s a very difficult question.

Possibly a court of law even though we ourselves cannot reach the execution of the contract is an unfair labor practice that a court of law might declare these contracts to be against public policy and hence unenforceable and that the only thing that the Union can do in answer to Your Honors question is simply make an appeal to the employer.

If the employer goes, it may have no more than that, simply that the employer will respect the commitment or not but not to be able to enforce it either by strike action.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

You say certainly it cannot enforce it by strike action in our position or not even go into the court of law and enforce it.

Earl Warren:

Well, doesn’t that make it per se invalid?

Aren’t these things that you’re saying don’t have — it doesn’t have — aren’t those distinctions without a difference?

Dominick L. Manoli:

Well, Your Honor, even though the Board itself has not reached that position of declaring these contracts generally as being against public policy, they have reached that point in connection with common carriers as I will explain in a moment that much of what we say here in support of our argument that these contracts do not constitute a defense to a violation of Section 8 (b) (4) (A), I think points in the direction of outlawing these contracts all together as against the policy of the statute.

It may be that all — all that the Union has is something in the nature of shall I say a moral obligation on the part of the employer to respect this commitment but no more than that.

Earl Warren:

Well then we — really, really what you want us to do is to say that these process are illegal proceeding.

Dominick L. Manoli:

I don’t believe you have to reach that, Your Honor, in this case.

I think that it would be enough for — from our position, from our standpoint —

Earl Warren:

From your position, yes.

Dominick L. Manoli:

— for our purposes to say that whether these contracts are legal or not, the statutes flatly prohibits — the statute flatly prohibits union appeals and inducements to the employee’s and when the Union engages in that regardless of what the legality or illegality of the contract, that the Union cannot engage in that kind of conduct, because that’s the very unfair labor practice that the statute prohibits.

William J. Brennan, Jr.:

Let me see if I get this, Mr. Manoli.

Dominick L. Manoli:

Yes, sir.

William J. Brennan, Jr.:

If for example there is one of these clauses and the employee’s of their own volition because there is such a clause that says if they need not handle these goods, do not handle the goods.

I gather the Board’s position is that there’s nothing the Board can do about it.

Dominick L. Manoli:

If as an individual employee’s —

William J. Brennan, Jr.:

Yes.

Dominick L. Manoli:

— that’s correct.

William J. Brennan, Jr.:

But if there representative should meet with them and say, we have this contract with your employer and you obey the provision.

Dominick L. Manoli:

Yes, sir.

William J. Brennan, Jr.:

These are hot goods.

Don’t handle them.

Then you say the Board can reach the Union.

Is that it?

Dominick L. Manoli:

That’s rights.

That’s right, because the statute makes it an unfair labor practice on the part of a labor organization.

It has to make individual action of the employer’s an unfair labor practice.

Oh, if you are to consider these agreements enforceable, it will practically open the door to secondary boycotts.

Dominick L. Manoli:

That is the — that is the position of one member of the Board, Your Honor, that joined the majority here that in effect, these contracts are against the policy of the statute because they circumvent — they circumvent or bring about the very evil that the statute were designed to remove from the American Industrial.

Now —

So basically your position is that the search is designed to protect the public rather than a secondary — a secondary employer.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

That’s right.

I’m coming to that.

It all stands to it — it comes down to that, doesn’t it?

Dominick L. Manoli:

That’s a very important consideration that this statute was designed for more than the protection of the immediate secondary employer, but it is also designed for the protection of the public at large and was also designed for the protection of their primary employer that was involved in the dispute.

And that their interest — their interest in being protected against these secondary pressures cannot be waived by the immediate secondary —

Well, I should think that if the statute is designed only to protect the secondary employer, you’re out of court because he can waive it.

Dominick L. Manoli:

That’s right.

By the same token that it’s presented — if it is intended to protect the public generally and I say the contract is bad.

I don’t see how you can —

Dominick L. Manoli:

As I say, you might —

You’ve got the fisher cut bait on the thing, it seems to me.

Felix Frankfurter:

You have the fisher cut bait in this proceeding?

Dominick L. Manoli:

I think not, Your Honor.

I think not.

Well, maybe not in this proceeding —

Dominick L. Manoli:

I think not, Your Honor.

It’s —

Dominick L. Manoli:

That problem might well arise if the union, for example, were to go under court of law and seek specific enforcement or seek damages on the — from the employer who ignored this commitment, then I think the question would be squarely raised as to what the — as to the legality of these contracts.

Well, it’s a very odd position that seems to me in this field to have a kind of unenforceable contract.

Dominick L. Manoli:

Well —

Hangs in limbo.

Dominick L. Manoli:

That’s as far as our statute goes.

It only goes to —

Why do you shy away from saying that the contracts against public policy are bad?

Why don’t you put (Inaudible) —

Dominick L. Manoli:

Well —

Why are you reluctant to do that?

Dominick L. Manoli:

Well, Your Honor, I don’t have a board majority.

And I have to — now, I do have a — I do have a board majority with respect to these contracts insofar as they affect common carriers and this brings me to the question, Mr. Justice Frankfurter —

Felix Frankfurter:

I don’t see why you don’t — why you shy away from Justice Harlan’s question?

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Felix Frankfurter:

Why you don’t say that in this case, the issue is what it is and that you don’t now have to decide whether Congress may have thought that it’s an impractical worry that you don’t have to worry about the employer’s responding to this kind of a contract and there will be time enough to build with that when that’s the issue and somebody goes into a court of law and try to get an injunction or money damages?

Dominick L. Manoli:

I appreciate —

Felix Frankfurter:

Why do we have to always decide more than we have to decide?

Dominick L. Manoli:

I appreciate your restatement of what I thought I had said before, Mr. Justice Frankfurter, and I quite agree with your — with what you say.

But I went on to say that if you’re asking me why I shy away if for no other reason, I have to shy away from it because I don’t have the majority of the Board holding at these contracts generally against the policy of the statute.

Felix Frankfurter:

It’s not the Board’s reason to decide at anyhow.

That’s the question of law in the court.

Earl Warren:

And you represent the Board.

Dominick L. Manoli:

I am the spokesman.

That’s correct sir.

Felix Frankfurter:

Isn’t that true?

How can the Court or why should the Court, the Board decide something beyond its purview.

Dominick L. Manoli:

I don’t think it needs to, Your Honor.

I don’t think it need to.

Felix Frankfurter:

Since when is law become a perfect, nice logical system?

Dominick L. Manoli:

Now, let me turn now to the statute itself and indicate how we think this case fits into the statutory phraseology.

As I said yesterday, the violation consists of three elements, namely the inducement of employee’s, secondly, the concerted refusal on the course of their employment, and third, the illegal object of forcing or requiring any employer or other person to cease doing business or handling the products of another.

We think that all these three elements here despite the hot cargo clause are present.

As to the first element, the element of inducement, I need not draw on that very long because the record amply shows that both the machinist and the teamsters appealed or directed the employer’s to carriers not to handle the goods of American Iron and indeed and its answer to the Board’s complaint, the Teamsters freely admitted that they had directed the employee’s of the carriers not to handle these goods.

Now, the second element is the element of concerted refusal in the course of their employment and I will break those into two sections.

Certainly and literally, we think that there was a concerted refusal in this case and that whether or not, the employer was consenting is wholly irrelevant because the significant factor is that the Union had induced in a concerted refusal on the part of the employee’s towards American Freight, American Iron freight.

Now, the argument is made.

It has been made in the court below.

It’s been in other the courts which have disagreed with us, that cons — the term concerted refusal like the term strike presupposes action in defiance of the employer’s wishes and normally of course that is — that is the case.

But we think that Congress in using the term concerted refusal in the statute is meant to go beyond that and they meant to include concerted refusals by employee’s even though — even in cases where the employer was acquiesce in that — in that conduct.

Now, the — the forerunner of the Taft-Hartley Act which is of course was enacted in 1947 was the Case Bill which came out Congress in 1946 and which was vetoed by the president.

The Case Bill as it came out of the House had a provision banning secondary boycott —

William J. Brennan, Jr.:

Before you get in to that, Mr. Manoli.

Dominick L. Manoli:

Yes, sir.

William J. Brennan, Jr.:

Concerted refusal has reference to a concert of who with whom.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

Of the employee’s.

Concerted refusal (Voice Overlap) by the employee’s, that’s right.

The — the Case Bill as it left the House, had a provision which banned secondary boycotts and it provided that it shall be unlawful by means of a concerted refusal to use hand the law otherwise do et cetera or to induce or require or attempt to induce or require another person to recognize, deal with, comply with and — or employee, members of any labor organization.

Now, when the case still came to the Senate, Senator Ball and Taft, who of course were among the principal proponents of the Taft-Hartley Bill in the following session of Congress, introduced this amendment.

They wanted to make it a violation to the antitrust law for labor organization by strikes or threats of strike or by concerted refusal to use, handle, transport or otherwise deal, the language is almost identical with Section 8 (b) (4) (A) from thereon.

They had added to the House Bill which contained that it was unlawful to engage in a concerted refusal.

They added the word strikes or threats of strike.

Now, explaining the addition of the word strike and also explaining the — what they thought concerted refusal meant in the context of that — both of that bill, Senator Ball said, “We had to include the word strikes because obviously if the construction union says we will put on our own fair list this product made by General Electric or Westinghouse, we will not use it.”

And the employer says, “Well, I will go along.”

And he merely stacks it up in the corner.

That is a concerted refusal to use.

The example that he gives there is one with employer’s acquiescing in the employee’s refusal and Senator Ball says that is a concerted refusal to use.

Then he goes on to explain what is meant by strike that strike was something in defiance of the employer’s wishes.

So here, it seems to us that the use of the term concerted refusal in our statute which is in a context almost parallel to the one of this Ball Amendment in the Case Bill that it suggest to us that Congress meant to give the term concerted refusal a broader meaning that action in defiance of the employer’s wishes that it also meant to include concerted refusal by the employee’s even though the employer was acquiescing in that action.

Now, the further argument is made that the hot cargo clause which purports to excuse the employees from handling — from handling these goods in effect removes — removes the handling of these goods from the course of their employment.

And the element of the statute that we’re concerned with now says concerted refusal in the course of their employment.

So the argument is made that the handling of these goods by virtue of the hot cargo clause has been removed from the course of the employer’s employment and therefore, this element is missing.

Now, I suggest, Your Honors, that this is a rather artificial interpretation of the phrase and the course of employment as it appears in our statute and that it suggest that goods are within or without the employer’s course of employment depending upon one day they may be fair or another day they may be unfair.

The simple fact is that Congress included the words in the course of employment in this statute to distinguish between refusals by employees as employees to handle this favored goods and refusal by employees as members of the consuming public.

As members of consuming public to not to — not to patronize — not to patronize this favored employers or purchase their goods.

And that this phrase is — was not intended.

It’s a rather artificial construction seems to us to say that in hot cargo clause removes the handling of freight which is normally their business, normally their business that it removes it from their course of their employment.

Now, finally, I come to the third element.

The third element of the violation and that is the forcing or requiring of any employer or the person to cease doing business with someone else.

The Union’s referring to the statute — again, once more, the statute says that it shall be an unfair labor practice to induce or encourage the employer’s of any employer to engage in the sympathetic strikes.

Then down to subparagraph (a) on page 66-4A where an object their obvious forcing or requiring any employer or self-employed — skipped a couple of lines — forcing or requiring any employer or other person to cease using, selling, handling, transporting or otherwise doing business with any other person.

Now, the unions would have the phrase in subparagraph (4) (A) forcing or requiring any employer or other person to meet that employer.

That is the employer — the media secondary employer whose employees are out — are engaging in this sympathetic work stoppage.

Now, the statute — the statutory phrase is not limited that way.

It says forcing or requiring any employer or other person.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

We think the phrase is broad enough to cover not only the immediate secondary employer — not only the immediate secondary employer, but also other employers who will be forced or required to cease doing business with some other employer.

There certainly is no reason, certainly we’re not required to read that phrase as narrowly as the unions — as the unions are suggesting in this case.

And let me illustrate what I mean.

In the case which follows this one.

The secondary employer whose employees were refusing to do, handle certain work on certain nonunion doors, in turn purchased these doors from a local intermediate — from a local distributor.

The local distributor in turn purchased them from the manufacturer who is nonunion.

Now, while it might be said that the immediate secondary employer who was party to the hot cargo agreement was not being forced or required — not being forced or required to cease doing business with anybody since he had presumably consented in advance.

Though concerted refusal by his employees would force the intermediate — the intermediate local distributor to cease doing business not only with the contractor of this action, but also with the manufacturer of the doors of the other end and certainly, that intermedia distributor was as much of a neutral person, a distinctive person as Congress saw it as the — as an immediate secondary employer who was not involved in the dispute.

And certainly, we think that Congress meant to protect the interest of those employers even though their own employees were not engaging in some strike action, meant to protect their interest and that the statutory phrase, the comprehensive phrase forcing or requiring any employer is satisfied — is satisfied when you have that kind of a situation.

Supposing that the secondary contractor has no contract with the primary employer.

He just said, “I don’t want to do business with you anymore.”

Would you say the statute prevents that?

Dominick L. Manoli:

No, sir.

If the employer decides not to do business with someone else, that’s — nothing in the statute about that.

It is only when the union — what the statute prohibits is a union inducement or appeals to the employees of a secondary employer in order to compel him or some other person to cease doing business with the chauffeurs —

I understand that, but when the secondary employer here themselves has quit doing business with the primary employer.

Dominick L. Manoli:

Yes, sir.

What does it add to the — what does it add to the problem to say whether the union — why can’t the unions encourage the employees not to follow the instructions of their employer?

Dominick L. Manoli:

That’s what the statute prohibits, that very thing.

Well, the question is whether it does.

Dominick L. Manoli:

No, but it — the statute certainly prohibits — certainly prohibits the union from going to the employees and put aside for the moment the hot cargo contract.

Say there was no hot cargo clause in here that the union should go to the employees of the secondary employer and said, “We don’t want you to handle certain goods.”

That’s a violation of the statute, a clear violation of the statute.

Now, if the employer eyes only without any pressure from the union, any — any strike pressure from the union decides not to do business with someone else, there’s nothing that we can do about that under our statute.

And even in the case where the employer has — there is this hot cargo clause so that they can — it might be said that he himself as in advance consented to his employers refusal to perform services.

In effect, he’s agreed in advance not to do business, not to do business with an employer who is disfavored.

We say that there is nothing in the statute we can do about that as long as the union does not go to the employee.

But once the union goes to the employees, that’s the violation of the statute and the statute makes no qualification with respect to that kind of conduct where there is a hot cargo clause in effect.

Now, the —

William J. Brennan, Jr.:

Mr. Manoli, you say when the union goes to the employee, what time does this — does that relate, to a time does that relate?

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

Well, I — practically, the situation arises when there are some companies on — maybe on strike or when it’s good to maybe a nonunion and when it’s good to arrive on the scene.

For example, here when the —

William J. Brennan, Jr.:

Well, I mean suppose I take it that the — where you have one of these clauses in the contract, the hot cargo clause and the contract with the secondary employer with the union.

Dominick L. Manoli:

Yes, sir.

William J. Brennan, Jr.:

Does the Union have anything to do going to the employees at that time to have the clause included in the contract?

Dominick L. Manoli:

Conceivably, the union may talk to the employees —

William J. Brennan, Jr.:

May?

Dominick L. Manoli:

— get this kind of a contract from the employer.

William J. Brennan, Jr.:

May (Voice Overlap)?

Dominick L. Manoli:

Pardon?

William J. Brennan, Jr.:

In practical practice, of course it does, doesn’t it?

Dominick L. Manoli:

And of course, undoubtedly, the union will inform the employees immediately after the execution of the contract what they have.

William J. Brennan, Jr.:

Well, I would suppose there would be some situations in which there’d be no contract until the employees at first approved it.

Dominick L. Manoli:

That’s — that’s correct, that’s correct.

William J. Brennan, Jr.:

And the — I suppose the negotiators of the contract that is their representatives.

The employee’s representatives can do something about persuading the employees that a hot cargo clause in their agreement, it’s a good thing for them to have.

Dominick L. Manoli:

But there is — at stage —

William J. Brennan, Jr.:

There’s no violation at that stage.

Dominick L. Manoli:

At that stage, there’s been no inducement or encouragement that are engaged in the strike action for concerted refusal to handle goods and that’s the — the vital thing for the — they have a violation on the statute.

On your theory, what is the union getting?

What makes a cargo contract?

Dominick L. Manoli:

Well, Your Honor —

It’s getting a right, an unenforceable right to hope that the employer is going to be — could support enough to live up to his promise, is that it?

Dominick L. Manoli:

That’s all it may have.

That’s all it is.

Dominick L. Manoli:

That’s all it may have.

On a kind of a contract.

William J. Brennan, Jr.:

Well would it mean this as a practical matter that if the secondary employer has a construction contract and he has to buy doors that he’d be very careful not to patronize any suppliers of doors unless they make doors that his employees would handle, is that it?

Dominick L. Manoli:

He may do that.

William J. Brennan, Jr.:

He probably does, doesn’t he?

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

That’s right.

Well, sometimes they don’t.

Sometimes —

William J. Brennan, Jr.:

Well, all of this — all of this goes to the public policy considerations that I think you rather slump off too lightly.

Dominick L. Manoli:

Well, I’m not slumping it all, Your Honor.

William J. Brennan, Jr.:

I shouldn’t say you are, perhaps that’s your Board.

Dominick L. Manoli:

I’m not slumping at all.

I feel that I am limited somewhat by my client’s views on this.

Felix Frankfurter:

You’re not authorized to ask us to issue a mandamus against the Board, are you?

Dominick L. Manoli:

No, sir.

Now, let me add further to continue with the argument that this statute was designed — that this statute was designed to protect interest of those of the immediate secondary employer.

I’ve already indicated that it was designed to protect the interest of secondary and other secondary employers who may be in the middle between the primary employer and the secondary employer whose employees are engaging in a sympathetic strike action.

Further, we think that Congress intended to protect the primary employer, the fellow who is directly involved in a dispute with this union and his employees that intended to protect him also.

The purpose of this statute was to narrow insofar as possible with few exceptions like Section 8 (b) (4) (B) was to narrow and insofar as possibly the area of industrial warfare to the employer who is immediately involved in dispute and his employers of the union representing his employees.

By that token, it seems to us that Congress was concerned not only with protecting the immediate — the secondary employer, the fellow who is not at all involved in the dispute but also deemed it unfair to the primary employer to subject him to this kind of — to these secondary pressures in order to compel him to accept the union’s — or yield to the —

That argument I can understand, but the consequence of it is it seems to me the contract is now good.

Dominick L. Manoli:

I have said, Your Honor, that — our argument may very well point in that direction, but I can’t quite go that far with — with you because the limitations that I feel are upon the point.

You wouldn’t feel free to express your own point of view as a lawyer.

That’s not a fair question.

I withdraw that.

Dominick L. Manoli:

I understand that.

Now, let me add one further consideration and that is I’ve mentioned that the secondary employers are protected, primary employers also is intended to be protected against this unrestricted warfare and finally, of course and perhaps this is the most important of all and that is the public interest.

The proponents of this statute felt that if you permitted the sympathetic strike actions to continue, to go on as they had in the past that there was a very serious danger.

Senator Taft expressed this fear that there was a very serious danger that the — a large segment of the economy would be tied up by the sympathetic strikes of course to the detriment of the public at large.

Now, Senator Taft, I think summed up what we have set forth in several pages of our brief, of contemporaneous legislative history, legislative history during the period that this bill was under consideration.

He summed that up in what I regard as a very up sentence sometime in 1949 during the course of committee hearings on administration proposals to repeal the secondary boycott provisions of the statute.

And I — in order to avoid any suggestion that I’m using post legislative history, let me say that first of all, this is Senator Taft who I think can be said to speak with some degree of assurance as to what the statute was intended and finally that all that this sentence does and I’m about to read to simply summarize very handily in one sentence what we have set forth over three or four pages of our brief.

I’ll be through in just a minute.

He said, speaking of the hot cargo, the secondary — rather speaking the secondary boycotts and what he thought the statute — the evil that this statute was designed to reach.

He said it is it, the secondary boycott is certainly is an attack and it hits right and left any number of people and the public who haven’t got the slightest interest in the dispute and does them serious financial damage.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Dominick L. Manoli:

Now, I think if we have a right to propose, if we have right in these considerations, it seems to us that it’s unrealistic suppose that Congress meant intended a private party, a private party to deprive these other interest, the interest of the public, the interest of other secondary employers, the interest of the primary employer to deprive them of the protection of this statute.

Earl Warren:

Mr. Manoli, may I ask you just one more question.

So far as the public interest is concerned, do you make any legal distinction between the two cases that involved a carrier and the Carpenter’s case that does not —

Dominick L. Manoli:

Fundamentally —

Earl Warren:

I’m speaking only of a legal distinction.

I’m not —

Dominick L. Manoli:

Yes, sir.

Fundamentally — fundamentally, Your Honor, the argument which I’ve made here, this case happens to involve common carriers.

The argument which I have made here is substantially the argument which we also make in connection with non-common carriers.

There is this additional element that has been introduced by the Board’s decision in the Genuine Parts case which came down after this — after this cases came to this Court and which we have apprehended to our brief.

In the Genuine Parts case which also involved a common carrier, a majority of the Board took the position that these contracts are against — are invalid to begin with, are invalid to begin with and that therefore they cannot serve to justify the union’s action, remove the union’s action from the reach of the statute.

Now, two of those members — two of the members at majority felt that that because of the obligation on common carriers to service all shippers without discrimination that the common carrier couldn’t enter this kind of agreement, the third member of the majority has concluded.

He concluded in these cases as well as in Genuine Parts that these contracts generally are against the policy of the statute and although the statute does reach them so that we can prevent their execution or compel their decision, that nevertheless, they are against the policy of the statute and that they employ the unions no protection.

Now, that as I say, is the view of one member at this majority.

Now, let me say in — in connection with that that recently, the ICC has had the question of the effect of these hot cargo clauses upon the shippers obligation, upon the carriers obligation to a shipper.

And in that case, which we have referred to in our — in our brief, the Interstate Commerce Commission held that these hot cargo clauses cannot serve to excuse the carrier from his obligation with respect to shippers, to serve — to serve shippers and the situation there was somewhat like the situation that we have here.

Now, one of the bases of the arguments that the union’s can engage in this kind conduct is that the employer — it is not unlawful for the employer and the union to get together and for the employer to say, “I will not deal with so and so.”

Now, at least with respect to common carriers on the basis of the ICC’s decision, that basis of that — that argument of the union is gone because as the ICC views it, a common carrier is not permitted to relieve himself of his duty to serve shippers.

And as I say but apart from that and I will conclude, apart from that, it seems to us that one of these contracts are legal or not — or illegal, the hard fact is — the hard fact is that this statute prohibits union inducement without any qualifications based upon the existence of (Inaudible).

Felix Frankfurter:

To leave no doubt about the distinction between the two, because the state did not but as to common carriers, not only can the contract not be invoked, but the shipper can get affirmative relief from a Court to compel a carrier to take a case.

Dominick L. Manoli:

Yes.

That may well be.

Earl Warren:

Mr. Thatcher.

Herbert S. Thatcher:

If the Court please.

We will if time permits get to the ICC aspect of the case, which I don’t think is actually involved in this case, but which has been brought in later on in the day.

First, in respect to the Board’s statement of the facts, I think there’s one or two things which should be added.

First, it must be deemed for purposes of this case that the particular hot cargo or struck goods clause, as we prefer to call it, was entered into freely between the carriers here and the union for valid or mutual considerations of some sort in the give and take collective bargaining that the union merely requested first members to take advantage of the terms of the clause that did not coerce them into refusing to handle the goods under the clause.

And finally that at least one of the said carriers that’s involved in this — that are involved in this case leeway was perfectly willing to have his employees not unload the American Iron Freight when it came to the dock and made no request that they not unload it.

In other words, he was willing to comply completely with the contract and not repudiate it.

I think it might be helpful to the Court in — in trying to find out just what the Congress thought of this hot cargo or struck goods agreements to know a little bit about the — their nature and their purpose.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

And we have submitted for the Court’s examination a so-called economic — economic brief which does set forth at some length the function of these agreements, their widespread use not only with the — in the trucking industry, but in other areas and in addition, the AFLCIO as amicus has filed a brief which in addition to going into the legislative history, deals with further — with a further economic inquiry into the scope and purpose of the so-called unfair goods or hot cargo goods agreements and industries other than transportation.

And it’s — you will see there that these agreements have our — our traditional labor agreement just like the union shall.

It’s an important part of the whole fabric of union protection and the union weapon in their dealings with employers and in their — taking their part from the economic life of the country.

There’s nothing invidious about these agreements.

They have many, many constructive purposes.

They are used widely in all industries, in many industries and they have been used traditionally for many, many years.

The relevance of that in connection with Congress, whether Congress could possibly, but intended to outlaw these agreements without even discussing them in the legislative debates.

I will discuss it little later on.

Employers — employers enter into these agreements for many reasons as the Board itself has pointed out in earlier briefs that it is filed in the Circuit Court.

Employers may desire to assist the union in order to eliminate cut-rate wave’s condition in the competing plants.

That is a benefit then for the employer to agree that his employees don’t have to assist in the strike at that cut-rate plant or the employer may as often happens gain some sort of a specific confession in the bargaining process in return for which he gives this hot cargo or struck clause agreement, or he may desire to maintain harmony in the plants or finally, he may just do plain in sympathy with the union’s position in the strike and agrees that his employees don’t have to act in any sort of strike breaking passage.

For the union, the hot goods clause as in struck goods clause has traditionally represented a formalization of their basic — the basic concept of the entire labor movement, namely the concept of mutual aid and assistance that working people in unions strive wherever possible to assist each other in their labor disputes and try not to act adversely against other unions engaged in a strike situation.

And so, these clauses have been traditionally bargained for and are presently contained in agreements, the length and press of this nation.

Do they usually take — contain the qualification that this agreement does which provided this is not a violation of the (Inaudible)

Herbert S. Thatcher:

Some do and some don’t.

That’s a make way to — it doesn’t mean anything.

You don’t think it means anything?

Herbert S. Thatcher:

No, I don’t, Your Honor.

Why doesn’t (Voice Overlap) recognition as to the (Inaudible)

Herbert S. Thatcher:

Well, either the clause is legal or illegal.

In this particular case, I don’t know who drew this particular clause, but that’s a make way that’s put into some union security clauses which they may be adopt, but it and itself doesn’t determine validity or invalidity of the clause naturally.

Most clauses don’t have that for what its worth.

This clause also, I might point out goes a little bit further than other clauses and says that the employees shall not be allowed usually because they shall not be required to handle struck goods.

This clause says that they shall not be allowed to handle unfair or struck goods, which is relevant in connection with whether this is in the course of their employment.

The history of this — of the litigation of the validity or enforceability of the hot cargo/struck goods clause before the Board who’s very little up until 1952, the Board was pretty unanimous in saying that these clauses are legal and enforceable, both.

Since 1952, beginning of 1953, no two members of the Board have been able to agree on any aspect of either validity or enforceability of these clauses, so that you’ll see all of the Board’s opinions dealing, which they changed the position as new members are appointed.

All of these opinions are — are contained in two and sometimes three separate — sometimes four separate concurring or dissenting opinions by the various Board members.

And it’s a very — I suppose that one thing that is proved by these history of litigation before the — before the Board anyway is that we certainly haven’t got any question of administrative expertise here that this Court have to be concerned about setting some fields or technically train consideration or view of the hot cargo problem.

As Mr. Justice Frankfurter pointed out, we have here a simply problem of construction of an act of Congress but the words — what the words means, what was Congress’ intent for all we have here.

So we need not concern ourselves with what the Board as a body of experts might consider because as I said, no two of them agree on anything.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

Now, as Mr. Justice Harlan pointed out, we have injected here at least to the — pretty strongly in the Board’s brief, although not so strongly in Board argument, oral argument, the question of the legality of hot cargo or struck goods clause as such.

That is whether the mere making of such a clause or the clause after it made is in itself an illegal clause for some reason or they’re under Taft-Hartley for federal public policy because it was prohibited by the language or whatnot.

That is not part of this particular case, because as what’s pointed out by counsel for the Board, Mr. Manoli, the Board here, all four — four of the five members either stated or assumed that the clauses in this case were legal and merely then went on to hold for various reasons or three of the members went on to hold for various reasons — two of the members only went on to hold for their reasons that the clauses were not enforceable for the reasons stated by Mr. Manoli and the third member said that the clauses as he has consistently said, Mr. Rogers said that the clauses are against public policies as expressed in the act and are therefore unenforceable for that reason and not the reason —

Felix Frankfurter:

Mr. Thatcher, will you please instruct me that the statute specifically makes illegal any particular — any kind of a contract?

Is there anything in the act —

Herbert S. Thatcher:

I —

Felix Frankfurter:

— that says this is an illegal?

Herbert S. Thatcher:

The closest I suppose is the union — it’s a closed shop or union shop clause and that’s done rather indirectly.

It’s not done —

Felix Frankfurter:

There is no —

Herbert S. Thatcher:

— in so many words, no.

Felix Frankfurter:

There’s nothing so that the only question about a contract is whether a particular contract cuts into some otherwise restriction in the acts?

Herbert S. Thatcher:

Some language of the act or some purpose of the act.

That is — that is correct.

Felix Frankfurter:

The Board isn’t concerned with illegal — illegalizing contract.

It can take a contract — an alleged contract by way of a defense, but the Board isn’t engaging in deciding whether this, that or any other contract is against public policy.

Herbert S. Thatcher:

Well, not yet.

We may come to that when we have other Board members, but as of yet, there’s only one Board member (Voice Overlap) —

Felix Frankfurter:

Well, I — I’m asking about the statute —

Herbert S. Thatcher:

In this case —

Felix Frankfurter:

— so far as the statute is concerned.

Herbert S. Thatcher:

No, not as far as the statute is concerned.

Felix Frankfurter:

No.

Herbert S. Thatcher:

But, I think at least to a degree that the legality issue is implicit here for the reason that all of the or that the basic prepositional premise on which the Board basis this argument of unenforceability is the same premise, the same proposition which is used to argue that the clause is illegal in itself.

Felix Frankfurter:

Well there might be.

(Voice Overlap)

Herbert S. Thatcher:

That’s a premise pointed out by Justice — Mr. Justice Harlan.

Felix Frankfurter:

I suppose you and I can figure more than I contrast that the union can enter into that the court of law wouldn’t enforce it against public policy —

Herbert S. Thatcher:

There are —

Felix Frankfurter:

— in which the court — with which the Board would have nothing whatever to do.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

There are of course many in this country.

Felix Frankfurter:

Many.

Herbert S. Thatcher:

But that as we — as I will show that it’s not our case because —

Felix Frankfurter:

I’m just saying —

Herbert S. Thatcher:

— the execution or enforcement is not contrary.

Felix Frankfurter:

— two different realms of (Voice Overlap) —

Herbert S. Thatcher:

That is correct.

But that’s not our — our case here.

As pointed up by Mr. Justice Harlan, the Board’s basic premise in this entire argument here and unless that premise supported this case as Mr. Manoli very honestly admitted, but that premise that supported this case got collapsed, is that Congress intended not to protect under 8 (b) 4, not just to protect the innocent third party neutral who is being struck in an effort to get him to cease dealing with the primary employer that’s engaged in the labor dispute or strike somewhere else in which neutral has no power to do anything about the dispute.

He couldn’t settle the dispute, the primary dispute.

It was not Congress’ intention merely to protect that individual against this course of strikes which is the traditional secondary boycott.

But also, Congress intended and by its language sought to protect the — any person, now that it goes with that part, any person who might be affected by the refusal to handle which is carried on by the so-called innocent third party neutral.

In other words, the primary employer as stated by the Board, who is actually engaged in a primary dispute, the Board says that he’s being protected somehow.

The Board says apparently the customers, consumers, any — I don’t know where the language is drawn.

The Board hasn’t attempted to draw a line, but apparently anyone who is affected by that secondary strike or that secondary boycott against the neutral is being — the Congress has sought to protect.

And in that premise, it argues of course the invalidity of the hot cargo as such as contrary to the policy of the act and its unenforceability because enforcing it would result in hurting these third– third parties.

And also, the Board argues from the same premise for an expanded interpretation of the language, of the literal language of 8 (b) (4), in a matter which 8 (b) (4) (A) in a matter which I will get to shortly.

So the whole case here will rise and fall on whether either the language of the Act or its legislative history demonstrates inclusively that Congress did intend to protect not just the third party neutral, but everyone that might be affected by — by this action taken against them.

Let’s see what the language says first.

So the language is set forth — on what page the Board — page two of the Board’s brief, the language 8 (b) (4) (A) is pretty narrowly drawn.

To examine it, what it does is — is prescribe first of all the union activity, not employer activity.

It doesn’t reach any employer activity no matter what its impact may be elsewhere.It only reaches activities of unions.

It only reaches a certain type of activity of unions, namely a strike or an inducement to strike.

Now, what — what is meant by the term concerted — concerted refusal, we’ll come to shortly.

We say it means a partial strike.

It was meant to embrace a partial strike, what you do have in this refusal to handle case, the refusal to handle only a particular product, not all products with a prospect.

But at anyway, it prohibits only a union from engaging number two in a strike or inducing a strike.

And three, for the purpose of forcing, and the word forcing is important, of enforcing any employer of the term or other person to cease dealing with someone else.

Now, that is pretty narrow language if Congress actually intended to give the broad protections which are contended for by the Board.

For instance, they could have said after the words “any employer” in the A part of our page 2 there, any employer or other person or any other employer or other person.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

What is meant by term other person, we’ll come to shortly.

That was not done.

The struck good or hot cargo agreement as such was not outlawed in so many words as Congress very easily could have done.

As pointed out by Mr. Justice Frankfurter, no clause — no contract as such has been specifically outlawed, but it’s significant that when they came to the closed shop or union shop, it was said that at least pretty directly, not in so many words, but in unmistakable language which it had to include the union shop agreement.

That’s Section 8 (a) (3).

Congress — Congress didn’t even do that.

The phrase “other persons” is what the Board hang its head on primarily, the other phrase other person.

The court below in the Second Circuit (Inaudible) and the Board prior to this Board in past years has construed that term to mean persons who don’t come under the definition of an employer under the Act, which means that they would have to have someone under their hire and thus, it embraces sole proprietors or persons like that who are often secondarily boycott, but who may not have employees and because they don’t have employees may not achieve the protection which Congress sought to give all innocent third party neutrals, whether they were actual employers or employees or not.

That is what — what the earlier board construed this section and how the court below has construed it and we think it’s perfectly reasonable and sensible construction.

The legislative history is not put on this at all.

It says nothing about what other person for that particular language was intended to cover.

But I think we should bear this in mind, surely the evil of the secondary boycott lies not in its impact on other person or on third — remote third parties, but on the pressure puts on an innocent neutral.

Because if the real evil is the effect on third parties, consumers, the general public and so on, then any economic action by union, a strike, a straight strike which had wide fold impacts often, depending upon the severity of the strike, that strike should be outlawed too.

Congress, of course, has not done that.

So it’s simply isn’t consistent or logical to say that Congress must have been concerned with all of these remote third parties or that the evil of the secondary boycott anymore than the evil of any other strike action or economic action by the union, lies in its impact upon remote third parties as distinguished from the immediate — immediately struck innocent third party neutral.

Now, getting to the legislative history, I think the most striking feature of that history is this, that although the hot cargo or struck goods clause is in a traditional feature of union — a traditional matter which union is surviving for many, many years preceding even the Wagner Act and a law they were in widespread used as pointed out by Board and as we point out by the time Taft-Hartley was being considered in 1947, 1946, there’s not a single mentioned by any of the legislators, any of the Congressmen or Senators or any of the reports of the hot cargo agreement as such or the struck clause agreement as such, no statement even that we intend by it be forced to outlaw the struck goods agreements which are so widely used and so on which would normally you think appear there if was a congressional purpose actually to outlaw or to limit the enforceability of these agreements.

But there simply is nothing the legislative history on the hot cargo agreement as such expressed by the legislatures.

Now, there is some testimony of course by employer witnesses who protest the hot cargo clause, but that type of testimony is evidence of legislative intent, then I don’t know any union activity that you couldn’t find a basis for prescription under Taft-Hartley Act.

The legislative history is set forth at some short length in our brief, in longer length in the brief filed by the AFLCIO, which I will read, the amicus brief.

That legislative history shows conclusively this, that in addition not to even — in addition not even to having taken off and debated, argued about the hot cargo situation as such.

The actual discussion when they were talking about secondary boycotts, all was centered around the strike that is directed against some innocent third party neutral who has nothing to do anything about the primary strike that is drawn in.

All the discussions referred to those to two aspects.

First a strike, the Congress was — was very much — I won’t say horrified, but they were very much impressed with the evil of an innocent party being subjected to a strike number one and number two, being forced against his will to give up business dealings with someone else.

That is what Congress was talking about all through these rather general references to secondary boycott, determine itself to mean a thousand things as both of our briefs point out.

But the actual discussion centered around the strike situation and against a particular neutral.

There was not talk about the public generally or other third parties other than the neutral, except in a very limited way, in a very incidental way.

Felix Frankfurter:

What do you say that Judge (Inaudible) suggestion that it is significant that Congress didn’t authorize the neutral, it recruited — enforced neutral from giving — by giving him relief.

He only gave relief to the Board.

Herbert S. Thatcher:

Well, I suppose the answer to that — one answer for that is that Congress shy away from the practice of giving any nongovernmental party, any private party the right to go into court for an injunction in the light of our unsavory past experience with the private use of injunctions in labor dispute in the federal courts.

I suppose I find it in the principal reason.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

That was — what actually was done was that the right of injunction was given only to the Board and to no other private party, the third party or the neutral or the primary party for that matter.

Felix Frankfurter:

That isn’t — that isn’t what’s happening now, is it?

Herbert S. Thatcher:

No.

Felix Frankfurter:

The private party has no right of injunction.

Herbert S. Thatcher:

No, we’re — it is (Inaudible) progressing.

Felix Frankfurter:

That and some of the — or even be available to the disposition, did it?

Herbert S. Thatcher:

No, I’m not sure.

So, this entire lack of discussion and arguments about the hot cargo clause as such and the limitation of the discussion to the evil of a neutral being heard indicates we say and you’ll read the numerous excerpts there, I think you will agree.

Indicate that Congress intended actually to get out to protect only that innocent third party neutral.

That’s a traditional concept of a — of a secondary boycott, that a fourth or third party out here that has no interest in the dispute is being attacked by a strike or something.

And the — the sympathy goes to him and Congress, legislated to protect him and it did.

But it didn’t seek anymore than it’s out in the primary strike situation to protect all persons who might be affected.

Now, even more revealing than what Congress said in the debates and whatnot or what its language says, I think is what Congress has specifically refrained from doing.

First of all, it refrained in the House version of the bill, the plan became 8 (b) (4), to outlaw threats against — threats of strike action against the neutral.

There was only actual strikes against the neutral which were outlawed.

So that, therefore, the law is today held by many circuits that a union has a right to threaten a neutral with a strike in order to force that neutral not to do business with someone else.

That’s perfectly — perfectly permissible today and the Board grants it.

Congress failed to outlaw that type of threat which certainly doesn’t indicate any great concern for the public.

The second and more important, if refused specifically to pass specific legislation introduced in the 83rd and 84th Congress designed to outlaw the hot cargo or struck goods agreement in so many words.

Senator Schoeppel in 19 — in the 83rd Congress and Senator Curtis in the Congress before the present one, introduced bills and argued strongly against the evils and so-called or they can see them of hot cargo agreements, but these bills were rejected.

(Inaudible)

Herbert S. Thatcher:

They’re in page — page 19 of our brief and it referred to in the brief of the AFLCIO somewhere.

That under many rulings of this Court, the International Boxing Club is one of them, others set forth in our brief.

It’s a pretty strong indication that Congress couldn’t have been so worried about these protections of third parties that might be affected or even about the outlawing of the hot cargo agreement itself.

In addition to all that, these questions can — the Board hasn’t yet answered.

If Congress was so concerned with the public, the general public or third parties who might be affected and not just the direct innocent third party neutral that they were so concerned, that Congress was so concerned with that that the Board argues.

Why didn’t it outlaw consumer boycotts of the innocent third parties?

Those are perfectly legal under Taft-Hartley.

Why didn’t it outlaw the voluntary action of a neutral in refusing to deal with someone else which has impacts — which might have the same exact impacts as an involuntary refusal as far as third parties are concerned?Why did Congress in 8 (b) (4) permit even direct strikes against neutrals in the situation where they were trying to get to the neutral to bring pressure on the primary employer who has refused to recognize a certified union.

That of course has the same impacts on the public.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

Why did Congress permit employee — permit union and employers to write clauses in their agreements which would permit — which would — which would prevent the employer from requiring his employee’s to cross picket line.

The Board — the 8 (b) (4) or the proviso to 8 (b) (4) does that and this Court in the Rockaway News case that’s set forth — mentioned in our brief specifically said that this type of agreement which is closely akin to the struck goods agree — agreement are perfectly valid.

And finally, what are we gonna do about the anomalus situation that’s created under the 301 when the union seeks — when an employer refuses and the Board says, “We have no right to go to our employees and say refuse to comply with the hot cargo clause.”

And the Board says, “We can’t go to our employees and tell them to comply with the clause.”

Then we go into court and seek specific enforcement under — under 301, Section 301.

The Board in its own brief suggested that that is a possible remedy when we said, “What happened to our contract?”

The Board says, “Well, one of your remedies is to go to Court.”

Supposing we got our specific performance, of course, the impact on third parties is exactly the same as in our — in the first instance the employees had refused to handle.

So again, this whole business of — in attempt, object to protect parties, third parties indirectly affected parties other than the immediately struck neutral, we say is simply without support in the language of the act, its legislative history and logic and common sense or any other premise.

(Inaudible)

Herbert S. Thatcher:

I — with our agreement.

Where does that take you?

Herbert S. Thatcher:

Well, I’d say it’s (Inaudible) I’d say — I mean, assuming the Board is right that we —

(Inaudible)

Herbert S. Thatcher:

Well, either Congress intended to protect other than that third party neutral and as in effect, either outlawed the hot cargo clause or at least denied enforcement by the union or it didn’t.

Now, if it didn’t as we contend, then we have a perfect right to enforce and to make these clauses.

I mean, Congress has got to — this Court will have to decide that Congress intended one or the other and if it — if it —

If we can’t decide then you got the statute on its face and you say (Inaudible)

Herbert S. Thatcher:

That’s right.

And it simply points the protection to third party neutral on its face and therefore since we’re not what we agree with that, we are free to make and enforce these agreements.

Felix Frankfurter:

I should suppose if there is such a thing as a standoff, the Board construction has something to do with it.

Herbert S. Thatcher:

Well then it’s up to this Court put the proper construction on it.

Felix Frankfurter:

But if it is a standoff, then either one is proper and therefore the Board prevail as I understand construction of a dubious statute, put into the hands of an administrative agency.

Do we pay no attention of the Board?

Herbert S. Thatcher:

I don’t think it would get much better to administrative expertise in this situation.

Felix Frankfurter:

I don’t know.

Why not?

Herbert S. Thatcher:

You can go to any —

Felix Frankfurter:

(Inaudible)

This Court changes its mind.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Felix Frankfurter:

That doesn’t make the last (Inaudible) negligible one, does it?

Herbert S. Thatcher:

Well, except we have here primarily a question of statutory construction which is the job of the courts more than the job of the Board.

Felix Frankfurter:

My starting point is you’re at session or exceeding to the suggestion that there might be a standoff, whatever that may mean.

If that means as I understand it to me that it could be either one or the other —

Herbert S. Thatcher:

Either which —

Felix Frankfurter:

And I suggest to you that the weight of the Board’s finding has some bearing.

Herbert S. Thatcher:

Well, I — if I meant to comply that there could be possible basis for the Board’s argument here.

I’ll withdraw that.

Felix Frankfurter:

All right.

I’m troubled by having in one case an argument made the Board’s finding should weigh with us and another case that it shouldn’t weigh anything.

But then that’s — that’s maybe a —

Herbert S. Thatcher:

But we —

Felix Frankfurter:

— a doctrine in the mind of mine that this is like a (Inaudible)

Herbert S. Thatcher:

We say pretty clearly here, this is not a case where you do have to refer to administrative expertise where you do have to fulfill a court’s function of determining what the meaning of the act is, what the congressional purpose was, which is the function of this Court and not the Board, or at least the Board’s conclusions are not entitled to a greater weight.

Now, let’s — so much for the general — what the general congressional purpose was or should be considered in this case.

Let’s apply the language of 8 (b) (4) to the facts of this case and see how we come out.

The Board has argued for the way they expanded reading of 8 (b) (4) under which any union inducements, whether it was in the nature of a strike or not of its members to refuse to handle trades, is a literal violation of Section 8 (b) (4).

And it reaches — it argues for this expanded reading on the assumption that is the congressional purpose to protect third parties other than the neutral.

Because if you didn’t — because in order to achieve that purpose, you’ve got to read — to read the 8 (b) (4) in the expanded fashion that argues.

Now, and it says therefore that even — that even though the employer repudiates the agreement, still, the union can enforce, and that is this case.

Let’s consider first the implications of that argument.

Apparently, the Board would permit and in fact encourage employers to repudiate valid commitments that are made in the give and take of collective bargaining where concessions are made back and forth.

We know that these agreements aren’t reached in a day.

Each clause represents a concession from one side or the other that the employer has the right to repudiate these agreements and go gus merry way leaving the unions and whatever other remedies it might have, which it — which at best are impractical as suggested by the Board.

It does this in the face of a specific policy in the Act to encourage the making of collective agreements and to protect these agreements when made and to provide means for the enforcement of these agreements.

The whole bend of the act is towards encouraging unions and employers to get together and make collective agreements in each of the acceptable terms and then to see to it that these collective agreements are enforced, to say it at least, it’s shocking to hear anyone suggest that a party is free to repudiate an agreement solemnly made for good considerations and we don’t know how we can assume a very valuable considerations here.

It’s even more shocking for the Labor Board as the guardian of the Labor Management Relations to make that suggestion in the labor management field where if anywhere it’s applied over the mutual promises be — of the parties be respected.

The court below was shocked with this — with this position of the Board, the Second Circuit in (Inaudible) was and for the centers Murdock Peterson were much shocked.

But aside from —

William O. Douglas:

(Inaudible)

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

That’s in the same (Inaudible) the same expressions of —

William O. Douglas:

126?

Herbert S. Thatcher:

Yes, Your Honor.

Aside from that — the affects of the Board’s argument, we submit that none of the elements, none of the four elements which go to make an 8 (b) (4) violation are present under the facts of this case.

First of all, Section 8 (b) (4) (A) requires that the union has engaged in a strike or an inducement to strike or — or engaged in a concerted refusal to do work.

Now, obviously, we have not a strike situation here when the employer has consented in advance that not only shall not the employees be required to handle American Iron Freight, but they shall not be allowed to.

The Board doesn’t argue that we haven’t got — that that element is not here.

We haven’t got a strike.

The union has not induced a strike in this case.

The Board says, however, we have induced some sort of a literal concerted refusal going out and taking the word refusal in its very literal sense.

Well, now, we state and it’s been — it’s found support in prior decisions of the Board here and in the decisions of the Second Circuit in (Inaudible) and the court below that the term concerted refusal was used by Congress to include something which might be less than a strike as commonly understood, a partial strike, and was used to — in order to get at this very situation here where in the absence of a — of a hot cargo agreement, employees may — or union may go to a employer, a neutral third party neutral and order those employees of that third party neutral not to handle just a particular — a piece of freight that came in whereas, during the rest of the day, they were free to work.

Now, maybe that wouldn’t constitute a strike, like in the present case of which we have no hot cargo agreement here at all or no struck goods agreement and the union had forced its employees — had told its employees, its members there, “Don’t handle American Iron Freight, but handle all the rest of the freight that comes in, or else when American Iron Freight comes in, go do something else.”

In other words, work all day long so you don’t engage in a strike, but don’t handle American Iron Freight.

Now, that situation wasn’t perhaps embraced by the word strike, so Congress used the phrase concerted refusal to handle — to take care of that very situation and not all of it.

It cannot mean any literal refusal to handle except on the premise of the Board that you’re out to protect the entire — all members of the public, not just the neutral.

There could be no refusal or partial refusal or partial strike here, which involves the element of insubordination when the employer as here has consented in advance to this very activity, and it’s actually stated that the employees shall not be allowed to handle American Iron Freight when it appears (Inaudible)

So there is no — that first element is simply added in this case.

The second element is that the refusal to handle had to be done in the course of the employee’s employment.

The word in the course of employment, the phrase is used in 8 (b) (4).

We say that means and it must mean this that Congress wanted to make sure that any strike or insubordination or disobedience of orders to work made by the employer was a proper order, namely was one made in the course of the employees employment and the Board put this phrase in, which it did.

The Board prior to 1952 construed the phrase course of employment to mean just that and it meant just that.

The Second Circuit since the Conway case way back in 1949 — since 1949, the Circuit Court considered the problem — have adopted that meaning of the word course of employment other than the Ninth circuit.

The Board says — this phrase and course of employment was to — was meant to make clear that they didn’t want to get after boycotting activities of employees, done by employees in their capacity as consumers, but that would be superpose the purpose the act merely interdicts employees from doing something.

And if they aren’t employees, then no need to worry about what to do in their consumers.

So we say the only logical meaning to the phrase in the course of employment was to tighten down what acts of disobedience to orders meant.

Here, of course, the work of handling American Iron Freight was not part of the employments, duties of the particular employees here because it has been specifically taken out.

In fact, the clause said that employees shall not be allowed much stronger than to not be required, shall not be allowed to handle American Iron Freight.

Therefore, we insist that the second elements of an 8 (b) (4) violation does not exist here.

I may point out that the Board’s insistence that the parties do not have a right to try to define their own terms of employment, which is traditionally done in collective bargaining agreements, applies directly to the face of this Court’s admonition to the Board in the American Insurance case where it says it’s none of the Board’s business, what the — what the substantive terms of the agreement are and particularly the scope of the employment’s relationship, which was involved in that case.

It’s traditional for union, for instance, to put in their contracts.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

Employers do agree that foremen can’t do the work of non-supervisory employees or vice versa or in the case of female employees, they don’t have to do certain types of heavy work.

Now, certainly, that sort of opposes in the contract and the union told its members to observe it that would never consider the secondary boycott, and we have the same type of clause here.

For instance, in this very case here, one of the freight that came up from American Iron was this little light packages, and the employer told its office personnel, girls or otherwise who were represented by some other union to go ahead and unload that — those packages because our dock people won’t and the union told them not to unload, their union, the Office Workers Union told them not to unload.

That would be considered to be a violation, clearly not because that is not worth that in the course of the employment of those office workers.

And in our case, it simply is not part of the employments relationship or the usual expected job of the dock hence that they unload struck goods.

Spelled out long in advance of any strike, long in advance of any labor difficulties and clearly understood by both parties.

That they — when that situation arose, their job did not require them to unload that particular freight.

The third element of an 8 (b) (4) violation is that the strike —

Felix Frankfurter:

I would think that that would be equally true if there was a struck goods agreement.

Herbert S. Thatcher:

And the union attempted to induce?

Felix Frankfurter:

And — and the employer told them that —

Herbert S. Thatcher:

Told the office people.

Felix Frankfurter:

Told his employees, “I don’t want to get messed up with this thing.”

(Voice Overlap) —

Herbert S. Thatcher:

That’s correct.

Felix Frankfurter:

That would be equally true.

As I say —

Herbert S. Thatcher:

If the employer —

Felix Frankfurter:

— cargo clause.

Herbert S. Thatcher:

Yes, that’s right if the employer urged of that action.

Felix Frankfurter:

Yes.

Herbert S. Thatcher:

The employer.

And that would of course result in not handling those goods and would have all the third party impact that the Board says Congress is worried about.

But that’s legal.

Felix Frankfurter:

Yes, I suggest — I suggest that argument.

That part of the argument really begs the question.

Herbert S. Thatcher:

Well, no.

Felix Frankfurter:

Because that implies that it’s all right for the — for the employees to — to be induced not to do that and then the employer says, “All right, I don’t want to get messed up with this, so don’t do this thing.”

And therefore they’re not in the course of employment.

Herbert S. Thatcher:

No, what if employer insisted?

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Felix Frankfurter:

What?

Herbert S. Thatcher:

And what if the employer insisted?

For instance, insisted that the office shall unload these goods.

Felix Frankfurter:

I’m not talking about the — about sending in goods (Inaudible) —

Herbert S. Thatcher:

Yes.

Felix Frankfurter:

But people whose job it is, but they’re induced not to do it.

Therefore, that piece is to be their cause of employment.

I suggest that’s begging the question.

Herbert S. Thatcher:

No, not that the employer insisted.

Unless he want to condone breaches of employer’s commitment.

That’s something else.

Felix Frankfurter:

I’m saying if he has no commitment.

Herbert S. Thatcher:

He has no commitment.

No.

Felix Frankfurter:

He has no commitment and then he says, “I don’t want to get involved in this thing.”

And then tells him not to do it, when they’re induced not to do it, “It’s all right, I don’t want to get in that stuff.”

Herbert S. Thatcher:

That’s —

Felix Frankfurter:

And so I take it out of the course of your employment and then the very thing which makes it a violation of the act takes it out of act.

Herbert S. Thatcher:

But the employers don’t have on his own.

Felix Frankfurter:

All right.

Herbert S. Thatcher:

Which will —

Felix Frankfurter:

He’s done it on his own because he’s been induced to do it by the desire of the men.

Herbert S. Thatcher:

If he’s been forced to do it, that’s one thing.

Felix Frankfurter:

Of course, you know what term that is, labor relations —

Herbert S. Thatcher:

Which is — which is something we have not get here.

Where the employer has agreed in advance, how can you say that he’s been enforced?

How is the requirement which this Court say when they first consider 8 (b) (4) in Denver Billing Trade that 8 (b) (4) is meant to — is meant to prohibit strikes which have the purpose of forcing a third party to stop dealing with someone else.

The word forcing is used by this Court.

What forcing have we hear when the employer has agreed specifically that way in advance of any American Iron Freight appearing in the platform that he won’t require his people.

(Inaudible)

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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William J. Brennan, Jr.:

Forcing or requiring, is it?

Herbert S. Thatcher:

Requiring is — has not this — the element of force and I suppose that forcing had.

This Court apparently construed the two much the same, because it used the phrase force, not requiring, referring generally to the 8 (b) (4) — the meaning of 8 (b) (4).

But, there’s no requiring here either, because requirement, again, announce — would imply some element of against the will, I suppose.

And the dictionary definitions would as set forth in our briefs would indicate that.

And here, there is no element of coercion whatsoever because the employers agree long in advance that he wouldn’t do this — that people would do this unloading.

And finally, we have the final element of 8 (b) (4) which is that the causing of a strike, employees of a neutral must be for the purpose of — must be for an object, an object of inducing that neutral not to deal with someone else.

In this case, in other words, the purpose of our request to the employees not to handle American Iron must have been for an actual object of inducing the carriers not to deal with American Iron as such.And we say that was not our extra logic here and object, a real object or natural object.

Our logical object was merely to obtain compliance with the contract to see to it that the — that can — do not have to act in any strike breaking capacity.

That was merely a (Inaudible) that American Iron happened to be involved.

The union had no evidence against American Iron that could have been a thousand in one other employers that the carriers might have been dealing with, that there was no actual object to get after American Iron.

We have no quarrel with American Iron and so therefore, for the Board to conclude that it was an object as to confuse the effect of what we did with what the actual object was and that therefore, the fourth object — the fourth element of an 8 (b) (4) violation is not present in this case.

So we say both by virtue of the general purpose of Congress and finally by application of the words used by Congress to the facts in this case.

We have no 8 (b) (4) violation here either by reason of the making or the existence of struck good agreement or finally by the — attempt by the union to enforce the agreement by asking its employees at the dock pursuant to that agreement not to unload American Iron Freight when it came to the docks.

Well, we’ve got a little time for the question of ICC and Genuine Parts decision of the Board, interstate commerce.

As the Board indicated, the Interstate — the Genuine Parts decision was decided after this case had gone through this — this case here had gone through the Court of Appeals below.

I think after certiorari was granted here.

In the Genuine Parts case, two members of the Board decided that under the Interstate Commerce Act, the — the hot cargo clause as such on its phase, the making of it, the existence of it was contrary to public policy in the legal under Taft-Hartley.

Now, I don’t — that — that issue, I don’t think is part of this case.

This wasn’t argued below, brief below or decide below.

Board has interposed here in its brief and of the entire Genuine Parts decision as an appendix to their brief.

I’m not going to attempt to answer — to make that argument, which we will get here sooner or later, I suppose, about the validity of hot cargo goods under the Interstate Commerce Act.

I do want to just point out a couple of problems though which we will have to meet when we do get that case before this Court in which it does illustrates a little credence at this point perhaps this Court can give to the Genuine Parts case, in this particular case.

First place, one major problem at the outset is whether dock employees that are involved here in American Iron, dock employees as distinguished from drivers are even subject to ICC regulations.

Normally, they are under wage hour, not ICC.

Second is that any function of the Board — the Labor Board or these two members of Labor Board anyway to attempt to — to adjudicate for the ICC in ICC area — in an ICC area.

Whether hot cargo agreements violate that Act.

The Board here, believe it or not, has these two members anyway have said that the hot cargo agreement is — not that it’s illegal under 8 (b) (4) (A) because of its language, but it’s illegal because of the language of the Interstate Commerce Act.

In other words, they put themselves in a place that the Interstate Commerce Commission and had made a decision for them.

This, they did about two weeks before the ICC itself decided that very case in which the ICC — that’s Galveston Truck Line Corp. versus Ada Motorlines that’s set forth in our brief.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Hugo L. Black:

What was the case you say?

Herbert S. Thatcher:

Galveston Truck Line Corp. versus Ada Motorlines that’s set forth in our brief.

In that case, the ICC said in so many words that we have no jurisdiction under ICC or under ICA to determine the legality under ICA of this hot cargo agreement.

And we’re not going to determine, although they were very strongly urged to determine.

We are not going to determine that issue and we will never determine that issue.

And they said that that is for the National Labor Relations Board and that Board alone to adjudicate.

William O. Douglas:

Is that the full commission?

Herbert S. Thatcher:

That was a full commission not a panel, full commission.

Felix Frankfurter:

What did they decide?

Herbert S. Thatcher:

They did decide this, Your Honor.

They did decide that in that particular case, the hot cargo agreement as such may or may not be applicable.

The question whether it was really invoked or not.

But they did say in dicta.

They did say this in dictum.

They said that the bare assertion of a hot cargo clause by a carrier as an excuse for fare to interline freight would not — would not be allowed by them.

That they would not permit the bare assertion of that clause as an excuse for refusing to accept goods to borrow their duties under — to accept goods under the Interstate Commerce Act.

Felix Frankfurter:

Is there any model about that decision?

Herbert S. Thatcher:

Well, they went a little further than they had before, sir.

There are three or four earlier ICC decisions in the field, two involving Montgomery Ward Company, another is Planters Peanut — I forgot the fourth.

In those, they — in one of the — one of the Montgomery Ward cases they’re in our brief, I think.

In one of Montgomery Ward cases, the Board — the full ICC did hold that a refusal across a picket line clause, which is greatly akin to the struck goods clause entered into between a carrier and a union, constituted an excuse for not accepting goods across that line, which is — which would seem to be —

(Inaudible)

Herbert S. Thatcher:

It was not, Your Honor.

It was not.

Felix Frankfurter:

I ask you what I asked Mr. Manoli.

Herbert S. Thatcher:

But that —

Felix Frankfurter:

Am I wrong in thinking that the cases have arisen in the Court for a shipper got affirmative relief as a carrier accept his goods?

Herbert S. Thatcher:

Yes, but the hot cargo clause was not involved in those cases.

Felix Frankfurter:

I understand that, yes I know.

Herbert S. Thatcher:

Yes, there are plenty case on that, plenty case on that.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Felix Frankfurter:

And it rest on the duty of the carrier to (Voice Overlap) —

Herbert S. Thatcher:

Right.

Whether —

Felix Frankfurter:

Do you think a hot cargo contract would make a difference, do you?

Herbert S. Thatcher:

Very much so.

Felix Frankfurter:

You do.

Herbert S. Thatcher:

— of course all sorts of elements —

Felix Frankfurter:

What?

Herbert S. Thatcher:

For instance, well —

Felix Frankfurter:

Is there any suggestion at any case that that makes a difference?

Herbert S. Thatcher:

Yes, this Court here, American Tobacco.

Very — almost explicitly said so.

Felix Frankfurter:

It was.

Herbert S. Thatcher:

In Weber versus Anheuser-Busch and General Drivers versus American Tobacco.

Felix Frankfurter:

Well, that’s a totally —

Herbert S. Thatcher:

American Tobacco —

Felix Frankfurter:

Why do you cite that, mister?

You know much —

Herbert S. Thatcher:

I will tell you why.

Felix Frankfurter:

— cite that?

Herbert S. Thatcher:

In American Tobacco, the precise issue was this.

It was a hot cargo clause in a carriers’ agreement, Interstate Commerce Carriers Agreement, which the state courts held was invalid under state law as a — is not complying with the carrier’s duty under state law to accept all merchandise.

The court said specifically — the Court of Texas — Kentucky Court said specifically that that clause is illegal under our law because it conflicts with the common carriers duties.

This Court says that we don’t care what you say about the common carriers duties or the validity of this clause.

It didn’t say that because of the per curiam decision, but I suppose imply to this because it reverse the court above and said that in effect, that this is a matter for the Labor Board to determine the validity of these clauses as had been determined in other cases and that the Taft-Hartley Act has preempted the state court from making that determination of validity.

William O. Douglas:

What case would that be?

Herbert S. Thatcher:

That’s General Drivers versus American Tobacco Company as set forth in our brief, which is a per curiam following Weber versus Anheuser-Busch.

In Weber versus Anheuser-Busch, we did have a clause though which the — between — agreed between the union and the employer, which said that the employer can deal with only certain types of outside contractors, fair contractors.

Union —

Hugo L. Black:

So the Interstate Commerce Act —

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

The Interstate Commerce Act wasn’t involved in that.

Hugo L. Black:

Does the Interstate Commerce Act (Inaudible) accept goods of another.

Herbert S. Thatcher:

It — it does not.

The —

Hugo L. Black:

— of another proposed shipment?

Herbert S. Thatcher:

It does not.

The Interstate Commerce Act merely says that it’s the — the general duty to accept all freight.

You can be excused from doing this depending on circumstances.

And then they look to see whether you’re reasonable if there is a hurricane or if there’s a strike.

Many cases have held that if there is a strike, you’re excused.

Other — other features which may intervene, which excuse reasonably the carrier from carrying out his duties.

Hugo L. Black:

I’m not talking about the cases.

What is the language — have you cited the language of Interstate Commerce Act?

Herbert S. Thatcher:

Well, I haven’t, Your Honor.

We didn’t —

Hugo L. Black:

That imposes a duty or —

Herbert S. Thatcher:

There’s no —

Hugo L. Black:

— no duty on shipment et cetera.

Herbert S. Thatcher:

There is no such — there’s no such precise language.

There is none, no.

Hugo L. Black:

It does not provide (Voice Overlap) —

Herbert S. Thatcher:

It doesn’t say —

Hugo L. Black:

— refuse.

Herbert S. Thatcher:

It says that they will not discriminate — yes, they said they shall not discriminate it.

It doesn’t say that it’s their precise duty to or not to go in a particular case to accept freight or not do it.

That depends on the circumstances.

But — but the law is that there is a duty, common law and — the Interstate Commerce Act duty to accept freight nondiscriminatorily.

But you can be excused from that duty in a particular situation depending on all of the circumstances.

Now, maybe the element of a hot cargo clause is or is not a circumstance which would excuse them.

We suggest that American Tobacco might imply that it would offer an excuse.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

If Congress, having taken this subject in hand and having said that certain types of agreement are valid, because they are — they are helpful in — in the management — labor management area and that unions has certain rights to engage in activities for mutual aid and assistance and can attempt to preserve these rights, to prevent themselves from being strike breakers as part of protections afforded under Taft-Hartley and the employer enters into an agreement which observes that right.

Maybe that will bore an excuse.

We don’t know.

This — this precise Galveston case did not plan to determine that, because the hot good — struck goods clause were mentioned only in passing.

Hugo L. Black:

If it is that duty under the law, either as expressed by the court in a long line of cases, which are under the Act says, “You need to accept goods for those who bring them there and the goods are all right, nothing dangerous about the goods.”

Those (Inaudible) anything of that kind that you need to accept and it is your responsibility to show that this law has obtained either expressly or impliedly by the laborers?

Herbert S. Thatcher:

Yes, and we’re purported to that.

I could say very briefly here that the Section 10 (a) of the Act, of the Taft-Hartley Act expressly imports transportation, the whole field of transportation into the hands of the Labor Board alone.

Transportation is one of the few things that the Board cannot delegate to a state board, under Section 10 (a).

Furthermore, Section 10 (a) says that the Board’s power of adjudication “shall not be affected by any other law.”

It makes that — Congress puts that flat provision in Section 10 (a).

Now, since Taft-Hartley antedated the Interstate Commerce Act by some years very conceivably, Congress intended that the Board, the National Labor Relations Board and that Board alone make adjudications in the field of transportation, including the validity of struck goods agreements, which cannot be affected by other intervening sources, state or federal.

I suppose if it is important to have a single administrative body in the single guiding authority in this field of labor management relations, then this Court should resist intrusion from any source, state or federal.

It is consistent to resist that intrusion from a federal — from a state source under the doctrine of preemption.

Felix Frankfurter:

Is this to the National Labor Relations Act and Hartley Act (Inaudible) Railway Labor Board?

Herbert S. Thatcher:

Yes, sir.

The specific reference to that I mean.

Felix Frankfurter:

And what does it exempts?

Herbert S. Thatcher:

It exempts that specifically.

Felix Frankfurter:

In other words, the whole business of labor relations on railroad —

Herbert S. Thatcher:

Specifically exempts.

Felix Frankfurter:

— is left that the Board has nothing to do with it.

Herbert S. Thatcher:

That’s right, Your Honor.

Felix Frankfurter:

So how do you get that what you just read as a limit — as a limitation, a limitation about the — upon the Interstate Commerce Act with reference to a scope of activity in which the Board has nothing to do.

Herbert S. Thatcher:

Except the question of whether employees have a right to engage in a mutual aid and assistance pacts with employers.

Felix Frankfurter:

That’s all —

Herbert S. Thatcher:

Given under Section 7, rights to engage in activities for mutual aid and assistance and the fact that Congress has expressly said.

Felix Frankfurter:

That’s all that — that’s all governed by the complicated machinery of the Railway Labor Act.

Herbert S. Thatcher:

No, I’m talking about the Taft-Hartley field.

Felix Frankfurter:

I know, but the Taft-Hartley Act hasn’t anything to do with the industrial relations on railroads.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Herbert S. Thatcher:

Well, we’re talking about motor carriers which are not — which is something else.

Felix Frankfurter:

But the duties of motor carriers to carry.

Herbert S. Thatcher:

Right.

We have two — we have two federal laws.

One, an earlier law and one a later.

We have a possible conflict in a field of labor relations.

Motor Carrier Act does not give the Interstate Commerce Commission and the Interstate Commission just held any jurisdiction to adjudicate in the field of hot cargo at all and they’re not going to this yet.

That’s for the Labor Board.

We say if the Labor Board has that jurisdiction, which it has, if Congress said that that right to adjudicate shall not be affected by any other law which it has said and has specifically said that transportation which has got to include motor freight transportation, because the other railroad transportation has specifically taken out, which has got to include motor carrier transportation.

That specifically is very carefully preserved for the Labor Board.

Under those circumstances, we say we have a case of supersession if not preemption.

Felix Frankfurter:

That’s the limit, your answer to Justice Black’s question was that that limited the duty which the Interstate Commerce Act has affirmatively in the light of the whole history of interstate carriers, places upon carriers to accept goods if they are presented in a fit condition that the National Guard doesn’t prevent carriage.

Herbert S. Thatcher:

Or other circumstances, including an Act of Congress.

Felix Frankfurter:

Well, but sure, if we got an Act of Congress, we wouldn’t be arguing this.

Herbert S. Thatcher:

Well, that’s right.

(Inaudible)

I’m not prepared to argue that —

Hugo L. Black:

You have a pretty heavy burden do you not to (Inaudible) policy of a carrier, a longstanding policy of the main carrier to accept goods.

Well, right yes, there is no law against it.

And you say that as an act changes it, it’s a pretty heavy responsibility.

Herbert S. Thatcher:

Well, it may be, but I’m not —

Hugo L. Black:

I’m not saying it hasn’t done it, but I’m just reading the lines there.

Herbert S. Thatcher:

Well, I don’t mean to.

If I am, that’s because I’m not fully prepared on that aspect of the case at all.

That’s not in this case.

The case does have — that case when it reaches this Court of the very respective areas of jurisdiction on this issue between ICC and the Labor Board.

There are many, many problems which I haven’t even attempted to touch here, but —

Felix Frankfurter:

Yes, but why it isn’t in this case.

Herbert S. Thatcher:

Well —

Felix Frankfurter:

In this case.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Felix Frankfurter:

I’m not saying with the other motor carriers.

Herbert S. Thatcher:

In this case — in this case, all members of the Board, in this case, held that the particular hot cargo clause in this case is legal under Taft-Hartley.

No member —

Hugo L. Black:

Suppose — suppose they did —

Herbert S. Thatcher:

No member —

Hugo L. Black:

— and we — are we bound by the reasons they gave (Inaudible)?

Herbert S. Thatcher:

No.

Hugo L. Black:

I wonder — I’m wondering if —

Herbert S. Thatcher:

You do have a —

Hugo L. Black:

(Inaudible)

Herbert S. Thatcher:

You do have — you do have a question of whether then perhaps the case would be remanded to the court below if they have the chance to pass on this, but the thing was never argued anywhere, never suggested by any Board Member even until after the court — this Court has headed to accept certiorari in the present case and if we’re going to have to meet that argument, we’d like to have a chance to fully brief and really argue it.

But I don’t see how since there’s only two members of the Board that taken this position, number one.

Since in any event, we have a Carpenters case here, which doesn’t involve any element of ICC.

We have the (Inaudible) case pending on certiorari.

Hugo L. Black:

Those are different cases.

Herbert S. Thatcher:

Which are different cases, but we have the case right now, which doesn’t involve ICC.

If the Board wants to — if someone wants to say that some Teamsters unions can have a hot cargo clause and the others can’t, I don’t — I say we should be given a chance to argue in brief that — that aspect if that’s going to be introduced here.

Felix Frankfurter:

Mr. Thatcher, a lot — a lot of businesses can do things that railroads and motor carriers can’t do.

That’s the whole point about this.

Herbert S. Thatcher:

Well, that’s right unless — unless —

Felix Frankfurter:

I don’t see what the Board has got to do or how the Board can enlighten us on whether or not a carrier is released from the otherwise duty of carrying goods that (Inaudible)

Herbert S. Thatcher:

Well, we have to find that out in the precise brought under the Interstate Commerce Act, I agree.

I don’t see how we can arrive that in a case brought under the National Labor Relations Act when there’s no complaint in this —

Felix Frankfurter:

Yes but it can’t be brought under the National Labor Relations —

Herbert S. Thatcher:

And there’s no —

Felix Frankfurter:

It’s none of their business.

Herbert S. Thatcher:

That’s right, and there’s no complaints here that in this case and it couldn’t be that the Interstate Commerce Act has been violated in any way when and if there is such a complaint and the Interstate Commerce Commission has adjudicated on it, then we can come up here and argue what — which forum has the jurisdiction.

Hugo L. Black:

Let me say, Mr. Thatcher, that I would be able to determine myself the ICC would attempt to say that shippers (Inaudible) to say that carriers, common carriers can make contract exempting themselves (Inaudible) shipped goods from the ship.

We have that —

Herbert S. Thatcher:

Well —

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Hugo L. Black:

— we have this matter, a case similar to this here with reference to the Department of Agriculture (Inaudible) the same principle.

Herbert S. Thatcher:

Well, there might be some real basis in protecting the duty of the carrier broadly and permitting them to enter into these types of agreements because supposing — because these hot cargo agreements do serve to greatly narrow the area of the dispute conceivably if there was trouble somewhere else and the employees didn’t want to unload and the carrier insisted that they unload, maybe his whole — his whole operation would be shutdown.

And in that event, not only just American Iron, but all of the other employers with whom the carrier might deal would be — would not have their freight delivered.

So there is — certainly, you aren’t in opposition to the congressional purpose of providing free shipments of goods when you merely limit to the particular situation like in this case in the — to the American Iron situation rather than encourage a strike in the old carriers operations.

Hugo L. Black:

You have to meet —

Herbert S. Thatcher:

But —

Hugo L. Black:

— somewhere, maybe not this case (Voice Overlap) —

Herbert S. Thatcher:

It will have to be met, Your Honor.

Hugo L. Black:

The question has to be met as to whether a common carrier can exempt itself to liabilities serve (Inaudible).

They won’t let the carriers.

Herbert S. Thatcher:

That’s right but the carrier has that duty — he also has the duty to bargain with the union over traditional subject matters of bargaining.

Hugo L. Black:

But can he bargain with the union in a way which permits him to exempt himself from the duties of carrying goods or shipment (Inaudible)

Herbert S. Thatcher:

What about if it’s tariff?

What if his tariff he said, “I’m not going to hold myself out to take goods from a struck plant,” which is done in many terms.

Hugo L. Black:

(Inaudible)

Herbert S. Thatcher:

Now, that’s up for the ICC right now.

That’s not — there are some motor cases, a pickup delivery case which says that such a carrier is legal in which the carrier says, “I will not move myself out to having to take goods from a plant that’s from — from someone else that’s in labor trouble.”

And that in an earlier ICC case, the pickup and delivery case — I haven’t got that in my brief here, but there is such a case in which the ICC at that time said that such a tariff was legal.

Felix Frankfurter:

Mr. Thatcher, could we — I’d just like to (Inaudible) whether it does or doesn’t become relevant.

Can we find out whether the tariffs in this case by the carriers excluded hot cargo things?

Herbert S. Thatcher:

It’s on the record, but I’ll endeavor to find out, Your Honor.

Felix Frankfurter:

So this may make a difference somehow.

Herbert S. Thatcher:

Thank you.

Felix Frankfurter:

That still leads up to the question that Justice Black put a minute ago whether if a shipper comes in and has that portion of the carrier declares before the ICC to be invalid inclusion that the Commission (Inaudible)

Herbert S. Thatcher:

That’s different.

William O. Douglas:

Is there any carrier party to this?

Herbert S. Thatcher:

It’s not an actual party, no.

The only parties are the union and the American Iron Company which is not a carrier, a manufacturer.

Earl Warren:

Mr. Poulton.

Louis P. Poulton:

Pleases the Court.

Audio Transcription for Oral Argument, Part 2: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board
Audio Transcription for Oral Argument, Part 4: NLRB cases – March 12, 1958 in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board

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Louis P. Poulton:

The petitioner in case Number 324 was a Machinists Union that started this whole thing, the dispute.

We would like to raise two defenses to the Board’s charges.

The first defense that we would raise would be that the controversy was rendered moot prior to the issuance of the complaint and secondly, assuming that the Teamsters can rely on the hot cargo clause as a defense to their actions, we would contend it also a defense to our action although we are not the contracting union to the contract to contain the hot cargo clause.

I’d like to first argue to mootness argument, if I might.

Now, the facts are necessary for consideration of the Court to decide whether this case was actually rendered moot prior to the issuance of the complaint.

Now, on September 15, 1954, the Machinists Union which represented the production and maintenance employees of American Iron, the primary employer, to engage in a lawful economic strike over the terms and conditions of the collective bargaining agreement.

Now during the strike, American Iron found it necessary to deliver their products to the common carriers by their own vehicles.

Does my time expire?

Earl Warren:

Red light will come on —

Louis P. Poulton:

During the strike, American Iron delivered these goods to the common carriers by their own vehicle.

The Machinists Union followed these trucks to the various common carriers docks and picket them in a U shape form around the truck while the truck was at the carriers docks.Contrary to the statement of Mr. Manoli, the union did not picket the premises of the common carrier.

Earl Warren:

We’ll recess now.