Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board – Oral Argument, Part 4: 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 3: 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:

Mr. Poulton, you may proceed.

Louis P. Poulton:

Just before recess, I mentioned that the Machinists Union raises the defense of mootness if the Court should decide that this case is moot is not necessary for the Court to go into the second defense of the reliance upon the hot cargo clause in the Teamsters’ contract.

Now, as I pointed out prior to noon — luncheon recess, on September 15th, 1954, the Machinists Union, which represented the production and maintenance employees of the American Iron and Machine Works Company, engaged in an economic dispute over the terms and conditions of the collective bargaining agreement with the employer.

And as I said, during the strike, American Iron found it necessary to deliver its products to the common carrier’s docks by means of its own vehicles.

And the Machinists pickets follow these trucks and picket them in a u-shaped form at the common carrier’s docks and only while they were at the docks.

When the truck arrived, the pickets would picket and when the truck left, the pickets would leave.

Now, due to this activity on the part of the Machinists, American Iron filed a charge with the regional director for the 16th Regional Board on September 24th, 1954 alleging a violation of Section 8 (b) (4) (A).

Prior to the issuance of the complaint by the Board, the regional director petitioned the District Court of the Western District of Oklahoma seeking a temporary — a preliminary injunction under Section 10 (l) of the Act.

This petition was filed on October the 11th, 1954.

The case was heard by Judge Wallace and it is known as Civil Case No. 6428 and is unrecorded.

The case was tried and heard on October 16th, 1954, which time Judge Wallace dismissed the petition for the preliminary injunction.

Now, on October the 21st, 1954, American Iron and the Machinists signed a collective bargaining agreement thereby settling the underlying dispute.

This agreement contained a no-strike clause and was for the period of two years, all picketing by the Machinists ceased on October 21st, 1954.

Now, two days after the underlying dispute was completely settled, the complaint was issued by the regional director.

We contend that by issuing this complaint after the dispute had been settled, the regional director clearly abused his discretion since the controversy was rendered moot.

Now, this Court — first, let me say that the question of mootness is not raised in this Court for the first time.

The question was originally raised before the trial examiner at the original hearing in the case.

It was raised by way of a motion to dismiss on the grounds that the controversy was rendered moot.

This motion was denied.

It was again reinstated before the trial examiner and has been preserved all the way through to this Court.

The Court of — the Board did not precisely rule on the question of mootness but rather accepted the trial examiner’s intermediate report as to this aspect.

Now, the trial examiner’s intermediate report merely stated this and I’d like to quote from its record, page 31, “The undersigned finds that these developments, that was the signing of the contract, had not rendered the present proceeding moot, orders dealing with unfair labor practices have preventative as well as remedial purpose in effect.”

The voluntary cessation of an unfair labor practice or private agreements for their end, do not deprive the Board of its power to add the sanction of a Board order and the possibly — possible enforcement proceedings in order to bar any recurrence of those practices.

The petitioner in 324, Machinists moved the Board, reconsider their decision and order on the grounds that the controversy was rendered moot and that they had not decided that issue.

This was summarily denied.

Now, this Court, in United States versus W. T. Grant Company, 345 U.S. 629 at page 633, stated in a question involving a violation of the Clayton Act whether that violation had been rendered moot, and I quote, “if the moving party must satisfy the Court, a relief is needed.”

The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.

And we contend that there was no possibility of recurrence of the violation since the contract had settled the underlying dispute.

And this Court in Local 74, the United Brotherhood of Carpenters & Joiners of America versus National Labor Relations Board, 341 U.S. 707 at page 715.

Now this case, I’d like to go in the facts of this case, this case involved a secondary boycott by the Carpenters Union of a renovation project.

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 3: 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:

Now, the renovation project was completed.

Prior to that, there was a charge filed for by the — I think it was the employer if I’m not mistaken because of a violation of Section 8 (b) (4) (A).

Now, the carpenters raised the question of mootness whether the completion of the renovation project had rendered the controversy moot.

This Court stated and I quote again, “This case has not become moot by the completion of the renovation project.”

The complaint was against petitioners’ use of secondary pressure upon Watsons, and that was the construction project in a manner prescribed by the statute.

The use of such pressure on this renovation project was merely a sample of what might be repeated elsewhere if not prohibited.

And the Court went on to say, the underlying dispute between petitioners and Watsons has not shown to have been resolved.

Now in this case, we contend that the underlying dispute has been completely resolved.

The dispute which gave rise to the picketing of Machinists was the economic strike over the terms of the contract.

That dispute had been settled prior, prior to the issuance of the complaint.

Now, the Board cites various cases —

Earl Warren:

Was the contract changed then, Mr. —

Louis P. Poulton:

Yes, sir.

The contract was completely negotiated and was a new contract, sir, for a period of two years.

Earl Warren:

Without that clause?

Would that same clause —

Louis P. Poulton:

What clause were you referring to, sir?

Earl Warren:

Well —

Louis P. Poulton:

The hot cargo clause, sir?

Earl Warren:

Yes.

Louis P. Poulton:

Let me — let me say this, Mr. Chief Justice, the hot cargo clause was not in the Machinists contract, sir.

It was in the contract between the Teamsters and the common carriers.

Earl Warren:

Yes.

Louis P. Poulton:

Now, the Board cites various cases to support its theory that this controversy was not rendered moot.

I merely like to point out in the cases cited by the Board, there were no factual situations where the controversy had been rendered moot prior to the settlement — have been rendered moot by a settlement of the underlying dispute prior to the issuance of the complaint.

This case, we feel, falls into the dictum in the Carpenters case and we feel the Board and the General Counsel abused its discretion by issuing a complaint two days after the underlying dispute had been settled.

William J. Brennan, Jr.:

Was the complaint — was that complaint also against the Teamsters?

Louis P. Poulton:

Yes, sir.

It was.

William J. Brennan, Jr.:

Did — did they join your mootness contention?

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 3: 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:

No, sir.

They did not.

I’d like to explain it if I may, sir.

The contract between the Teamsters contains the hot cargo clause and that was what the violation, as I understand, Section 8 (b) (4) was predicated upon against the Teamsters.

That dispute had not been settled.

They still had that clause in their contracts, sir.

Therefore, their case would not be rendered moot and they did not raise that contention.

Now, I like to now turn to the hot cargo agreement, the Machinists reliance thereupon.

We, of course, will adapt the Teamsters’ position that the clause is legal and enforceable by direct inducement of the secondary employees.

The courts below in the Rabouin case, Crowley Milk case, and in this case itself, found that the hot cargo clause removes the elements necessary to a finding of Section 8 (b) (4) (A) against the Teamsters.

Now, if the clause itself removes the elements necessary to a finding of 8 (b) (4) (A), it removes the elements not only as to the Teamsters but as to whatever union is enthusing the secondary employees.

There have been three courts at the present time that have considered the precise question of whether a union which is not a party to the contract containing hot cargo clause may use the hot cargo clause as a defense, one Court being the court below in this case which by a divided decision found that the clause was not available to the Machinists Union, although Judge Washington in a dissenting opinion in that case found that the clause was available as well to the Machinists as it was to the Teamsters.

And he stated it made no difference as to who was doing the enthusing, whether it was the Teamsters or the Machinists.

Now, also in this case in the 10 (l) proceedings, the same precise question was before Judge Wallace.

Judge Wallace summarily, I might say, denied the petitions for injunction and therefore we contend that he also found or that he found that the hot cargo clause was available to the Machinists as a defense.

Now, the third court which considered the contention was the District Court in United States District Court for Southern District of New York.

In Dallas versus Teamsters, Local 707 in 1205, the district judge concluded that the hot cargo clause was not a defense as to a non-contracting union.

He found it on the basis that the contracting union, pursuant to the actual language of the clause, reserves the right to apply the clause.

The right was reserved.

Therefore, he found that until the contracting union actually exercised its rights under the clause, it was not a defense to a non-contracting union.

And when I say non-contracting union, I mean a union that is not a party to the hot cargo clause.

Now, that case can clearly be distinguished and I think we can — a petitioner in 324 can cite that as authority for our case in support of our contention that we can rely upon this hot cargo clause, since the clause in the present case says that the employees shall not be allowed, shall not be allowed to handle hot goods.

There is no necessity on the part of the contracting union to exercise an option.

There’s no option given to them.

So therefore, we contend that if the same factual report, the District Court, the same clause it would have decided that the handling of struck goods was removed from the course of the secondary employee’s employment and the clause was available to a non-contracting union as a defense.

Now, I’d like to point out something else that the Circuit Court in this case — first I’d like to say this, I’d say the Board did not pass on this precise question of whether the defense was available to the Machinists because they found that the defense was not available to the Teamsters union therefore, automatically they found it wasn’t available to the Machinists.

The Circuit Court of Appeals, as I said by divided decision, found that the clause was not available and they found it on these grounds, that the Machinists union was neither the contracting union did not hold the contract containing hot cargo clause nor where we — third-party beneficiary.

Well, we will concede in any strict contractual sense we were neither — we cannot deny that we were not the contracting party, but in a strict contractual sense, we were not a third-party beneficiary to the hot cargo clause.

However, the clause was made for the benefit of another union other than the contracting union since the clause would be valueless to the contracting union.

They would have no need for the clause.

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 3: 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:

It was made for the sole purpose of helping either sister locals of the Teamsters or other labor unions that were caught in the throes of a strike.

In summing up, I would like to say just this that first — our first contention is the case was rendered moot prior to the issuance of the complaint and we think the Board and General Counsel abused its discretion by issuing the complaint because of the mootness.

And secondly, we would like to say that if the Teamsters conduct is permissive and the hot cargo clause is legal and enforceable by direct inducement of the secondary employees, then we feel that the clause is equally a defense to the Machinists contract.

I thank you.