Local 24, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO v. Oliver

PETITIONER:Local 24, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO
RESPONDENT:Oliver
LOCATION:U.S. District Court Southern District of California

DOCKET NO.: 49
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 358 US 283 (1959)
ARGUED: Dec 10, 1958 / Dec 11, 1958
DECIDED: Jan 19, 1959

Facts of the case

Question

  • Oral Argument – December 10, 1958
  • Audio Transcription for Oral Argument – December 10, 1958 in Local 24, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO v. Oliver

    Audio Transcription for Oral Argument – December 11, 1958 in Local 24, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO v. Oliver

    Hugo L. Black:

    Uelmen, you may proceed with the case which you have before us.

    David Previant:

    If the Court please.

    I think that I have some five minutes left of my time.

    I was so advised and I should like to devote that very brief time to making more definitive answer to a question which was put by Mr. Justice Whittaker at the beginning of the argument yesterday.

    The question as I recall it was whether or not there was any significance to the fact or should be attached to the fact that these leases or contracts of transportation or at least the one which appears in the record was executed prior to the execution of the 1955 contract which was the subject of litigation.

    I feel that the findings of the Ohio Courts and the judgment of the Ohio Courts make it clear that this case was not litigated on the idea of any malicious interference with an existing contract right, but that it was litigated on the idea that this contract was per se in violation of the particular statute of the State of Ohio which is here involved.

    At Page 256 of the record, it appears the findings of fact in the judgment of the Court.

    And I would call to this Court’s attention, finding 2 (d) that Article 32 squarely is in conflict with the public policy of the State of Ohio as reflected on Section 1331.01 Revised Code.

    And it is void and unenforceable.

    The Court goes on in its judgment and it’s the first paragraph of its judgment to say that the defendants are hereby perpetually restrained and enjoined from entering into any agreements one with the other or carrying out the effects, requirements or terms of any such agreement which will require the alteration, cancellation, or violation of plaintiff-appellee’s existing lease or leasing agreement or any such agreement hereafter renewed or renegotiated and entered into.

    The Court then goes on in subsequent paragraphs to restrain these defendants from any such contracts in the future and perpetually enjoins and restrains us from it anytime enforcing Section 30 — Article 32 of the contract.

    I think throughout the litigation, the opinions of the Court, the findings of the courts below, the judgment of the courts below, the question presented was whether or not, this article of this contract was per se void not whether or not it happened to interfere with any particular existing lease arrangement of Revel Oliver or anybody else is.

    I might say in that regard that if that were all that were involved in this case, that matter could have and probably would have been settled in the collective bargaining table.

    And I would assume that we do not have any right to enter into a contract at this time which would completely destroy existing contracts which a carrier may have with someone else.

    That’s a matter for bargaining and I supposed it’s a matter for exclusion of existing contracts during the course of bargaining.

    But that isn’t this case.

    This is not the case of where the plaintiff comes in and asked only that we refrained from maliciously interfering with an existing agreement.

    He comes in and says that our collective bargaining contract is completely void contrary to the public policy of the State of Ohio as expressed in the Antitrust Act of the State of Ohio and therefore we are perpetually restrained from enforcing that contract as to him and as to anybody else.

    Not only as to existing contracts but as to contracts he made, enter into with carriers in the future.

    So we believe that that particular point was not an issue.

    I would further point out as I indicated yesterday that the 1952 contract containing the identical provision, Article 32 was restrained upon its execution and while it was under the cover of that restraint, that the 1953 lease was entered into.

    And then that restraint was again imposed upon the 1955 contract subsequently litigated all the way through to completion.

    So, as I said yesterday, if these restraints have not been imposed, the carrier as he testified would have been in compliance with the contract and many of the issues which were adjudicated in Ohio under — under those facts would not have been subject to adjudication in our opinion.

    The —

    William O. Douglas:

    Where is Article 32 in the record?

    David Previant:

    Article 32 is set forth —

    William O. Douglas:

    (Inaudible) of discussion.

    David Previant:

    — bodily at page 144 of the record in which the contract itself appears —

    William O. Douglas:

    Thank you.

    David Previant:

    — and the particular article itself Your Honor.

    William O. Douglas:

    I’ll find it here.

    David Previant:

    Can be located it at page 38.

    It is also set forth in each opinion of the — of each Ohio Court and it is also set forth I think at length that in the brief of the respondents here.

    Mr. Previant, what if preemptions were held here, what could the Labor Board do about it?

    David Previant:

    Well, if the — I think there are number of ways in which it can be submitted to the Labor Board.

    It can be submitted in the posture of whether or not when we ask for this kind of an agreement whether we are bargaining collectively and in good faith.

    In other words, is this within the area of either compulsory or permissive bargaining which this Court refer to in the Borg-Warner case.

    Now if we are insisting that an employer signed this agreement with this article in it and if the Labor Board is satisfied that it so unrelated to wages, hours, and working conditions, it could find us guilty, so to speak, of an unfair labor practice under the Taft-Hartley Act.

    And do an order restraining us from seeking to negotiate this particular article.

    That is one way in which it could have been presented to the board.

    It could have been presented to the board by Mr. Oliver in one or two postures.

    He might have gone to the board and said that we were committing an unfair labor practice because we were insisting that he, as an independent contractor, become a member of our labor union.

    That is a specific unfair labor practice under the Act.

    Labor union has no right to force an independent contractor to become a member of a labor union.

    He could have complained about that.

    He might have filed a petition for representation claiming that he and his employees or rather that his employees were a separate unit for the purposes of collective bargaining.

    And the board in that proceeding could have determined whether or not he was an employer, whether or not his employees — were employees of his and whether or not, we could make them employees of someone else.

    As a matter of fact, there’s a proceeding now pending in the Court of Appeals, growing out of these very same circumstances although the parties are not identical, in which as a result of this restraining order, the union did make a request upon the so-called fleet owners to bargain with the union pending the resolution of this problem in the courts.

    And when the fleet owners refused to bargain with the Union, the Union struck the fleet owners and picketed at the premises of A.C.E.

    Now the board, contrary to the finding of what I should I say this.

    The trial examiner found that A.C.E. and the fleet owners were co-employers.

    And therefore, this was not a secondary boycott situation.

    The Board reversed that finding of the trial examiner.

    The Board found that the fleet owner was the sole employer and therefore when we picketed at the A.C.E. premises.

    We were engaging in a secondary boycott.

    We have taken that matter on appeal, but I would like to emphasize two things, number one, this is a fine example of how productive of strike the interference of the state court and the state agencies has been in this case because were it not for the restraining order entered in this case which is now before this Court saying that we could not enforce the provisions of this contract, there would have been no question but that these people would have been employees of A.C.E. and that we would have been in the legitimate labor dispute.

    Thank you.

    Hugo L. Black:

    Mr. Denlinger.

    Stanley Denlinger:

    May it please this Honorable Court.

    I will devote the time allotted Your Honors to the position of Revel Oliver, the owner operator and plaintiff below in the trial courts of Ohio.

    Stanley Denlinger:

    And Mr. Iden will devote his time to the position of the carriers, Interstate and A.C.E. and we will try to keep our arguments and positions as to those respective parties are separate as we can.

    Throughout the briefs of the Teamsters Union and their position in this Court, they have studiously and methodically ignored the keystone of foundation contract on which this litigation began.

    Justice Whittaker has saved me some time in ascertaining that the contracts on which the plaintiff relied in the trial courts and the contract which was given interpretation on the question of relationship and status was the contract existing and in full force and effect for more than three years prior to the execution of the collective bargaining contract known as the “Over the Road Agreement” attached as an exhibit to this record.

    This contract between Revel Oliver and the carriers with A.C.E. was dated December 28th 1953 as appears on Pages 145 and 149 of the record.

    For a period of many years before that, identical contracts were in existence varying only in description and license number of the tractor and trailer leased.

    Oliver’s lease dated June the 20, 1955 for the Mac Truck in Ohio Body Trailer with Interstate, was a replacement of equipment that he had leased at this company’s business since 1952.

    And so we reached the conclusion that the contracts between Oliver and the carriers where all existing prior to the collective bargaining agreement.

    Now the A.C.E. contract with Oliver provides among other things on Page 147 of the record the relationship created is that of independent contractor and not that of employer and employee, the operator is a contractor only and not the employee of the carrier and that is the quote from that contract.

    Secondly, the Interstate calls Oliver the leasor and provides an addition to the lease of the equipment that Oliver and I quote, “Will also furnish one or more competent drivers as maybe the case,” from page 150 of the record.

    We conclude that the independent contractor relationship was established by the wording of these contracts themselves existing at the time that the collective bargaining arrangement was entered in to between the carriers and the union.

    William J. Brennan, Jr.:

    May I ask you Mr. Denlinger?

    Stanley Denlinger:

    Yes, sir.

    William J. Brennan, Jr.:

    If no such contracts had existed, would there have been any application of the Ohio Antitrust statute?

    Stanley Denlinger:

    If no contracts are existed we would not have had this lawsuit either —

    William J. Brennan, Jr.:

    But I —

    Stanley Denlinger:

    — in respect to the —

    William J. Brennan, Jr.:

    (Voice Overlap)

    Stanley Denlinger:

    — Valentine Act or the —

    William J. Brennan, Jr.:

    No, that’s not my question.

    My question is whether the existence of those contracts is necessary to establish a case under the Ohio Antitrust statute.

    Stanley Denlinger:

    No, we think not.

    William J. Brennan, Jr.:

    Think not.

    Stanley Denlinger:

    We think not.

    William J. Brennan, Jr.:

    If this arrangement had just been at will of some kind between Oliver and the sophisticated carriers, you might nevertheless have had a lawsuit under the Ohio Antitrust Act.

    Stanley Denlinger:

    We think that any citizen or the State might have brought such an action, but Justice Brennan we feel that the finding of the Court relative to the invalidity of Article 32 is not necessary to the determination of the case and that the state court neither the trial or the appellate court relied wholly upon the Valentine Act to find that the existing agreement should not be interfered with.

    William J. Brennan, Jr.:

    Well, that was going to be my next question.

    Stanley Denlinger:

    I’m sorry.

    William J. Brennan, Jr.:

    Whether the existence of the contracts would have been the basis for the relief you had with —

    Stanley Denlinger:

    I — I — I say that —

    William J. Brennan, Jr.:

    — in state court without reference to the State’s Antitrust Act.

    Stanley Denlinger:

    Yes, I say that, if Your Honor please, for the reason that the trial judge who I might say off the records, spent an entire summer in looking up this question and writing his opinion after careful study found in his opinion, it was not absolutely necessary to determine either the question of independent contractor of the violation of the antitrust laws of Ohio because Oliver was being damaged by an interference with his existing contract.

    Now that is the basis of our claim and the angle of the voidness or illegality of Article 32 is something on which the carriers themselves I think rely more than we as an owner-operator felt was necessary to establish the remedy which the Courts of Ohio purported.

    William J. Brennan, Jr.:

    I gather then that under your Ohio law, interference with the contract of this kind entitles due to a remedy by way of restraint and not limited to damages.

    Stanley Denlinger:

    That is correct.

    William J. Brennan, Jr.:

    Now did this restraint run also against the certificated carriers or just against the union?

    Stanley Denlinger:

    It ran against both the certificated carriers, apparently the union and that was based on two reasons, that Article 32 itself required a modification, cancellation, or obliteration of the existing agreements within 30 days after the collective bargaining agreement went into effect.

    In addition to that, these characters particularly notifying Mr. Oliver and all other owner-operators at A.C.E and interstate that they were advised that the leases would have to be canceled because of the agreement.

    William J. Brennan, Jr.:

    Can I ask one other question?

    Stanley Denlinger:

    Certainly.

    William J. Brennan, Jr.:

    (Inaudible) — these are lengthy opinions of the court below and I —

    Stanley Denlinger:

    Yes.

    William J. Brennan, Jr.:

    — don’t know that I have done a good a job of studying it as I should.

    Do you suggest that they’re actually based, the lease you have was based upon interference with the contract independent of the Valentine Act?

    Stanley Denlinger:

    Oh, I think the Courts tied the two together.

    Both the Court of Appeals and the trial court because in each instance, the courts found that this Article 32 was on its face, a tendency to create a monopoly under the Valentine Act of Ohio by establishing rates which all owner-operators had to charge throughout the State of Ohio.

    William J. Brennan, Jr.:

    Was that specifically Subdivision 4 of the Valentine Act —

    Stanley Denlinger:

    Yes.

    William J. Brennan, Jr.:

    — which has a standard of figure, is that it?

    Stanley Denlinger:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    Well, did the — do we — does either opinion suggest that these are alternate grounds?

    Stanley Denlinger:

    I don’t think it shows any alternate grounds at all, Your Honor, I think they’re tied together as I understand it from reading the opinions and findings of both Courts.

    Now, if I can go back to the point of discussion of independent contractors neither the trial court nor the appellate court trying this case de novo.

    And I say that Your Honors because this matter was not carelessly litigated in either courts but quite fully and carefully and the Teamsters brought new testimony into the appellate court by way of Mr. James Hopper of Detroit testifying in the Court of Appeals.

    But from the evidence and not standing alone on the name or designation given to the relationship in the contracts of the carriers and the owner-operator, the Court found that Oliver purchased his equipment in his own name, this was of his own choice, make, type, and horsepower.

    That he paid the drivers the union scale, that he withheld the withholding tax and accounted to his — the Revenue Department for it.

    He paid the Social Security and unemployment benefits under the federal and state firms.Oliver alone discharged or fired employees, the carriers never did.

    And Oliver pays the Ohio Drivers Insurance.

    He pays for the fuel permits for all oil, gas, tires, and repair, collision, fire, and prep insurance.

    He pays his driver’s health and welfare benefits.

    He pays all the bridge tolls.

    Stanley Denlinger:

    He takes his equipment to service station of his own choice for service.

    His trucks are dispatched at the terminals of the company on the basis of first in, first out along with company equipment.

    His drivers comply with all of the rules and regulations of the ICC and Oliver pays for all fines or charges or any violation of any kind.

    The trial court had complete authority to determine the status and relationship of the parties under the lease contract without going into the collective bargaining agreement in anyways, shape, or form.

    And, this was a contract entered into or wholly beyond the authority, jurisdiction, or direction, or enforcement of any kind for the National Labor Relations Board because it was a contract dealing not with wages, hours or working conditions of employees.

    Do you think that the Norris-LaGuardia Act had anything to do with this case?

    Stanley Denlinger:

    We think not Your Honor because this was not a labor dispute.

    We do not think that an attempt upon any third party combining with a contracting party to breach an existing agreement presents a problem of labor dispute.

    That would depend would it not on whether — what the status is — of your client was in fact that the contractors (Inaudible)

    Stanley Denlinger:

    No.

    I can’t accept that Your Honor.

    I don’t think it makes any difference.

    As the trial court said, whether Mr. Oliver was an independent contractor or whether he was some other name you might assign to him.

    He had a contract, perfectly bona fide regarding the leasing of equipment and driver and so forth and no one, union, anybody.

    It — it didn’t have to be a union who brought about a breach of this contract.

    In other words, the question of labor and strife and the prevention of stoppages of work and so on is no feature of a contract of this nature between a carrier and an individual or between anyone in industry.

    That is our position, I think largely —

    (Voice Overlap) antitrust provision —

    Stanley Denlinger:

    — was that of a —

    Do you think the antitrust provision — do you think the Federal Government could have brought an antitrust suit to enjoin this contract — enforcement of this contract being restraint of trade?

    Stanley Denlinger:

    Yes, Your Honor.

    I —

    You do?

    Stanley Denlinger:

    — think that it might have.

    But I — I do not think that, that was the remedy afforded to a citizen of Ohio entering into a contract between citizens of the same state and involving subject matter to be enforced into the State.

    I do not think that the fact that the Federal Government might have instituted a suit for violation of the antitrust laws federal wise was a remedy which preempted the hearing of the matter in federal court as distinguished from the right of the State of Ohio to pass upon the question just before it.

    That is —

    Well, if the Federal Government couldn’t have brought such a suit, it might be, might it not, that the State would similarly be foreclosing, bring such a suit in a theory of preemption there.

    Stanley Denlinger:

    In — if I may say this Your Honor, on the Valentine Act of Ohio.

    I noticed —

    Stanley Denlinger:

    It may be enforced by individuals and with the damage arising in connection with it as distinguished from enforcement solely by the Attorney General or the State.

    The reason I —

    Stanley Denlinger:

    That is possible under the Act.

    The reason I raised the question is I didn’t see any discussion in either side in these briefs to the Norris-LaGuardia —

    Stanley Denlinger:

    Well, that is true, Your Honor.

    — Act, (Voice Overlap).

    Stanley Denlinger:

    And it had not occurred to me to discuss that until Your —

    Your opponents don’t either.

    Stanley Denlinger:

    — Honor has presented the question now to me —

    (Voice Overlap) —

    Stanley Denlinger:

    — but I feel that — that in the light of your decisions lately in Gonzales and Russell that the fact that even though there might have been a remedy from a federal wise action to be taken that unless that remedy gave all of the relief which our state court might have given Oliver in this case that it would present no question of preemption to the federal courts, to the ouster of the Courts of Ohio.

    That’s our position on that, but it doesn’t answer Your Honors question, but it’s the best answer I have.

    Hugo L. Black:

    May I ask you a question following up —

    Stanley Denlinger:

    Certainly.

    Hugo L. Black:

    — on the question by Mr. Justice Harlan.

    I — I do not quite understand the ground on which you say the Norris-LaGuardia Act has no relationship to it.

    As I understand it, you say that because this was not a labor dispute within the meaning of the Norris-LaGuardia Act.

    Is that —

    Stanley Denlinger:

    That is not my point Your Honor.

    Hugo L. Black:

    I thought that was what you said.

    Stanley Denlinger:

    I said there was no labor dispute as we understood our transaction, but that — if the —

    Hugo L. Black:

    Well, how do you —

    Stanley Denlinger:

    If the Norris-LaGuardia Act did take application here and the Court or the Government sought to find the carriers and the union in violation of the Sherman Antitrust Act, that all of the procedures furnished either by the Sherman Antitrust Act or by the application of the Norris-LaGuardia Act to federal labor disputes would not here furnish a basis of ouster of our state courts and the preemption of the federal jurisdiction for the reason that the remedy under either the Norris-LaGuardia Act or the Sherman Antitrust would not furnish the remedy to which we are entitled under a set of facts of the nature here presented.

    Hugo L. Black:

    I understand your latter argument that it has nothing to do with the first one.

    But if you are saying it is not a labor dispute within the meaning of the Norris-LaGuardia Act, I’d like you to explain why it was not under our opinion which I had thought I wrote.

    I had thought you said that negotiating over with independent, whatever you call them, buys — buy their own goods and have their own wagon.

    I thought we he had said that was a labor dispute in the Drivers’ Union against Lake Valley Company, 311, United States.

    Stanley Denlinger:

    Yes.

    But there your problem was not an existing agreement between the — one of the party’s defendant and the plaintiff Your Honor.

    We do not think that applies to our set of facts here at all.

    Hugo L. Black:

    Well, do you think there’s any difference in the type of contracts that were made there and here?

    Stanley Denlinger:

    Oh, yes.

    Hugo L. Black:

    (Voice Overlap) — what are they?

    Stanley Denlinger:

    Well, I — I don’t understand that the problem of contract is presented here is in the case Your Honor cited at all.

    Hugo L. Black:

    But the argument was that it couldn’t be a labor dispute because these were vendors of milk, they bought milk.

    Stanley Denlinger:

    Yes, but the parties were different.

    There you — you’ll have in effect what would be the carriers here in that position.

    You do not have the owner-operator as the party plaintiff seeking the relief, as I understand it.

    Hugo L. Black:

    But wasn’t — what was held there was that that was a labor dispute.

    Stanley Denlinger:

    Yes, Your Honor.

    Hugo L. Black:

    And it involved that system of doing business.

    Stanley Denlinger:

    That was a dispute between the employer and the union.

    And the employer was making the claim that it was not a labor dispute because it involved independent contract.

    Hugo L. Black:

    Well, does it make any difference who raises the question of whether or not it’s a labor dispute?

    In negotiation was in connection with the system that was conducted.

    Connection with the wages and said that these independent vendors were breaking down the wage scale.

    Therefore, they negotiated in connection with that matter.

    Stanley Denlinger:

    Yes.

    I think it makes a great difference whether the man who has a contract, that whose — which breach is sought and complete it by third parties or whether it is the employer and the union if Your Honor please, who raises the question?

    I think the rights of parties are very distinguishable there.

    Hugo L. Black:

    Well, I can’t understand how there’d be a — if your Court had found that there was — what’s generally termed the tort of malicious interference of contract rights.

    If they had based their ruling on that, you would have a different argument here, I suppose.

    Stanley Denlinger:

    Well, that is one of the findings the Court has made Your Honor.

    Hugo L. Black:

    But I understood you to say that it was not an independent basis for this.And even if it were, you would have other questions that come up.

    Why —

    Stanley Denlinger:

    The — but first —

    Hugo L. Black:

    Do you — do you say that they cannot negotiate on this with the different employers there and this man who drove the truck part of the time and hired others to drive it part of the time?

    Stanley Denlinger:

    We say that he — that he cannot enter into such an agreement as is provided in Article 32, Your Honor.

    We — we say to Your Honor that the destruction of an existing contract terminated by the terms of an agreement of third parties is not a negotiable subject for a collective bargaining agreement.

    We say that a clause in a collective bargaining contract that requires an owner-operator are independent contractor to vary the terms and conditions of his existing agreement at the peril of having his contract cancelled is not a negotiable subject for unions and management.

    Hugo L. Black:

    Well then I suppose that the driver did all his driving in spite the equipment, every bit of it.

    And many of them did.

    And the union went to the employers and said, “Now, this system is destroying our wage scale and our working hours scale, we want to negotiate.

    We don’t want you to do business with them.”

    Would you say that was not a labor dispute?

    Stanley Denlinger:

    No, I don’t say that’s not a labor dispute.

    Hugo L. Black:

    Well, would you say that the — that wouldn’t come within the range of things about which they could negotiate?

    Stanley Denlinger:

    Well, I — I would say that if they negotiated such an agreement, it would then be subject to the objections of the contracting parties who would be affected by such a change of —

    Hugo L. Black:

    Well, there are many —

    Stanley Denlinger:

    — configuration to which they were not a party.

    Hugo L. Black:

    There are many regulatory laws that do not — that involve contracts either directly or incidentally.

    And suppose that — suppose you assumed for the moment, that this is a proper subject to negotiation between a labor union composed of drivers and composed of companies who drive — who employ them.

    Supposed it’s a proper subject to negotiation for them to say, to make a contract, to try to make a contract to the effect that they’ve got to amend in that system entirely or else they’ve got to pay a certain amounts.

    Would that be an improper question to negotiate under the Taft-Hartley Act or the other Act?

    Stanley Denlinger:

    We think so, definitely.

    Hugo L. Black:

    Do you think it would definitely could not be done?

    Stanley Denlinger:

    That is correct.

    Hugo L. Black:

    Now, who do you think should pass on that?

    Who should have the jurisdiction to determine whether that’s within the range of things that are permissible?

    Stanley Denlinger:

    Well, may I answer Your Honor this way.

    We have not attacked the collective bargaining agreement.

    Hugo L. Black:

    You collect — you have attacked one term then?

    Stanley Denlinger:

    We have attacked one clause that is separate and distinct, completely dealing with a specific classification that on its faces thereby admitted by the terms of the agreement is not a part of wages, hours, or condition of employment of employee.

    Hugo L. Black:

    Well, supposed it were, suppose Congress had made it such, would you say that Ohio could make — could punish a man or a company or a union or anybody else for entering into an agreement or negotiating over an agreement that Congress had permitted to be negotiated in connection with interstate commerce?

    Stanley Denlinger:

    If Your Honor please, our Court said not sought to punish anyone.

    Our Courts have taken the position that such a contract interferes with a valid agreement existing in the State and therefore we will protect the existing contract against the onslaught.

    Hugo L. Black:

    But supposed — suppose it would be decided.

    Suppose the Labor Board had decided and the courts had sustained the decision that this is a proper subject of negotiation under the circumstances here.

    Would you still say that Ohio could make it an illegal part of a contract and nullify it?

    Stanley Denlinger:

    If Your Honor please, I’ll have to answer that question by saying, “I don’t know how this question could have gotten to the Labor Board.”

    Stanley Denlinger:

    I see no way that we could have had a determination of the fact on which Your Honor bases the question on what our courts of Ohio might do.

    Hugo L. Black:

    Well, that’s a different argument that you’re making now.

    Suppose it had gotten before the Labor Board and it decided it and the Court sustained it.

    Would you say that still that Ohio could nullify the contract on the ground that they shouldn’t have negotiated it even though the Federal Government permitted it in connection with (Inaudible)

    Stanley Denlinger:

    No, I would not go that far Your Honor.

    Hugo L. Black:

    Then it is —

    Stanley Denlinger:

    In other words, we have meticulously tried since your decision on the (Inaudible) case in Ohio to follow the admonitions that you have on preemption on jurisdiction and I am guessing of course, but I do not think that our courts of Ohio would run crosswise to a declaration of this Court or of the board as to a contract that we might otherwise feel interfere with our operations in Ohio.

    Hugo L. Black:

    I’m asking you this question frankly because I don’t know, but I’m wondering.

    I had supposed that this was a very common type of contract and the people negotiated quite all the time.

    I haven’t written or given also which is quite a different case but I had suppose it were rather come as — say at least since the Milk Wagon Drivers’ case that there were negotiations about people, where they call them independent contractors or anything else but it was interfering with the wage system claimed to be that the parties would negotiate that.

    And sometimes it might result in saying if these contracts — where you’re not going to make these contracts, not going to — you — you’re not — we’ll negotiate with you on whether you will bar this kind of — or whether you can do business this way.

    Stanley Denlinger:

    If Your Honor please, we think that that problem was not presented under the facts of this case.

    And we are —

    Hugo L. Black:

    I thought it was.

    Stanley Denlinger:

    — attempting to —

    Hugo L. Black:

    I thought that was the — the heart of it.

    Stanley Denlinger:

    No.

    We think that is not the heart of it.

    We think the heart of this case is, may the union enter into a contract with the carrier who already has an existing contract with which requires by its very terms a complete elimination or modification of an existing bona fide enforceable contract that would result in the complete elimination of that legal agreement.

    We think that that is our plaintiff’s case here.

    Now this — this arrangement of leasing, if Your Honor please, is just as common a business as this so-called collective bargaining of the Teamsters over the various states.

    And this very Court in the MC-43 case held that it’s perfectly proper for a carrier to operate on the basis of owning his own equipment or leasing equipment.

    And there, the majority of this Court found that the regulation of the ICC with reference to trip leases was the perfectly validly regulation which the Commission was authorized to make and which this Court would approve.

    Two of the members of this Court took the position that even that interfered with the legal right of the carrier to choose, whether or not he should use leased or company-owned equipment.

    Now, in that very case, this Court approved the leasing of equipment in accordance with ICC regulations.

    And if there is any question here on the part of the union as to inroads into wages or other conditions because of the lack of proper regulation with the ICC, then the task lies not in making contracts which compel the elimination of existing agreements, but lies in the Teamsters’ approach to the ICC for such a regulation as will correct the evils that they may charge is being perpetrated.

    Now, we —

    (Inaudible)

    Stanley Denlinger:

    Sir?

    (Inaudible)

    Stanley Denlinger:

    All right.

    Now if Your Honors please, unless you have some questions I will stop with that and not bear upon the time of Mr. Iden who desires to present the carriers’ position.

    If there are any further questions, I shall honestly attempt to answer them before Your Honors.

    Hugo L. Black:

    Well, thank you very much, Mr. Denlinger.

    Stanley Denlinger:

    Thank you, sir.

    Hugo L. Black:

    Mr. Iden.

    Charles R. Iden:

    I think the question that you have asked was probably more important to you than the subject that I might discuss and I would like to continue on if nothing to answer the question which you have raised.

    Now, you’re a supposition, of course, it isn’t in the case.

    It didn’t occur.

    Hugo L. Black:

    What is that?

    Charles R. Iden:

    The supposition would be that the carriers, let’s say, did not sign the contract, so that the question could have been presented to the board.

    See the facts are that this contract is negotiated in — in the Chicago for very few deputies representing these 3500 carriers, so that my two clients would have very little voice in the ultimate result of the negotiation.

    Hugo L. Black:

    Well, there’s any challenge to the fact that this is a contract —

    Charles R. Iden:

    No.

    Oh, no.

    Hugo L. Black:

    — insofar —

    Charles R. Iden:

    Oh, no.

    Hugo L. Black:

    — as it’s valid, it’s binding.

    Charles R. Iden:

    I — this could have gone to the board if we would have refused to sign the contract.

    And then there would have been a complaint made that here that there was a demand that the negotiated contract which is made by our agent should be put in writing.

    That could have gone to the board that way if we had refused to sign.

    The union could have taken it there.

    And under the law and the board would had only one duty to perform.Had the contract been negotiated?

    Was it made on our behalf?

    Had our agents agreed to it?

    They would have ordered us to sign it.

    Now bear in mind that the board, the National Labor Relations Board is a statutory board, it does not have the jurisdiction that any court has.

    It has that narrow jurisdiction of looking at one statute, interpreting that statute and enforcing that statute with blinders on the side of its heads as to the other laws affecting the relations of the parties.

    That Board has no antitrust jurisdiction.

    It has no duties or responsibilities to enforce the antitrust laws.

    Charles R. Iden:

    So that when this question would come up as to the narrow issue then we either had refused to bargain on this Article 32 or we refused to sign a contract with that in it, all the board would have said, it was a — they probably would have said that it was a subject to bargain.

    That one was requiring subjects but a permissible subject to bargaining.

    It would have told us to bargain on it.

    Hugo L. Black:

    On this (Voice Overlap) —

    Charles R. Iden:

    That Board (Voice Overlap) —

    Hugo L. Black:

    — on this subject?

    Charles R. Iden:

    It — I would say that possibly the board could have ordered us to bargain on it.

    William J. Brennan, Jr.:

    Can I suggest (Inaudible) —

    Charles R. Iden:

    On this?

    William J. Brennan, Jr.:

    (Inaudible)

    Charles R. Iden:

    Oh no, I’m — I’m —

    William J. Brennan, Jr.:

    Prior to that.

    Charles R. Iden:

    No.

    I’m making an assumption to approach —

    William J. Brennan, Jr.:

    (Voice Overlap) — you said it was hardly permissible.

    I’m wondering if you find (Inaudible), this subject before us.

    Charles R. Iden:

    Oh, I don’t think that if — they would have — I wouldn’t go so far as to say that the — that the — all of those requirements that you will find in Article 32 never been required except in bargaining required that we give up —

    William J. Brennan, Jr.:

    The general — the general subject, Mr. Iden, I ought — suppose those would require subject to bargaining namely whether or not an employer with whom a union is bargaining for its members or the group that represents shall or shall not subcontract the out part of the employers work.

    Charles R. Iden:

    Well, that maybe the case where there was an accusation that we were affirming it out to interfere with the union or interfere with some of their rights.

    This was —

    William J. Brennan, Jr.:

    Whatever that reason maybe —

    Charles R. Iden:

    This has been historical.

    William J. Brennan, Jr.:

    — informing of the practice has certainly been the subject of collective bargaining.

    Charles R. Iden:

    Well, I’ll go along with your assumption that they would have ordered us to bargain on it because that won’t change my result.

    The Board still would have been looking at the narrow issue of A.C.E. in the one case, Interstate in the other case versus the board and the employees and it still would not have had at any jurisdiction under the antitrust.

    The question wouldn’t even been presented to them.

    Now, I wanted to discuss just a little bit the ICC Section, the question in which it was raised in brief and wasn’t argued here and I’m only saying that now because a decision of this Court germane to that subject, I believe will answer the question we’re on.

    In the southern rate case, the State of Georgia versus The Pennsylvania Railroad, that’s not cited in my brief, 324 U.S.439.

    In that case, the State of Georgia was accusing the northern railroads of preferring northern industry and northern states above the interest of the southern States particularly State of Georgia and their industry.

    And so they made a request to file an original action in this case, in this Court under the constitution.

    Charles R. Iden:

    And this case was a discussion of that — of the right of the State of Georgia to bring that action in this Court under that constitutional provision.

    There was no question in this — in the decision to what the ICC was the only body that could remove the rates or could control the rates.

    This Court had no authority on that subject.

    But the Court recognized this and said this.

    That these subordinate congressional boards do not have antitrust jurisdiction.

    And so while the ICC would look at an isolated rate by a particular railroad and would say the rate was good or bad, the ICC would not look at the whole picture to see — say whether or not, there was a conspiracy which affected the filing of these rates.

    So that this Court said that this Court sitting here is the only Court that can look at the whole picture to inquire as to whether or not there is a conspiracy behind these moving the railroads in filing their rates tothe Interstate Commerce Commission.

    And so this Court said this, “This action will free the rate making function of the influences of a conspiracy over which the Commission, the Interstate Commerce Commission has no authority, but which he had proven to exist can only hinder the Commission in the tasks with which it is confronted.”

    And the Court said, further if — this Court, it will eliminate from ratemaking the collusive, the practices which the antitrust laws condemn and which are not sanctioned by the Interstate Commerce Commission.

    So I say here, assuming that the board had said that this was a proper subject to bargain and assuming the board said, “Sign the contract,” in the case it would been negotiated when we refused to sign it.

    Still, the National Labor Relations Board would not have the jurisdiction to inquire into the broad subject to determine that this identical clause affecting the lease of equipment was being enforced and put as against every carrier in the State of Ohio.

    That’s the jurisdiction of Board wouldn’t have.

    So that under your decision in the southern rate making case, the antitrust laws are still enforceable by the Court because we can’t make the assumption that Oliver is not an independent contractor.

    That fact has been found by the trial court.

    It’s been found by a three-judge appellate trial court.

    It’s been confirmed by the decision of the Supreme Court.

    This identical lease was at issue in the National Labor Relations Board at about the same time.

    In the 120 NLRB, 150, identical lease, after the decision —

    William O. Douglas:

    Were the parts are the same?

    Charles R. Iden:

    Oliver for some reason that I do recall now was not a party to it.

    But as a result of this decision —

    William O. Douglas:

    Were the other respondents parties to that?

    Charles R. Iden:

    A.C.E was.

    The identical lease that’s in effect between Oliver and A.C.E was at issue in the NLRB case.

    You see after this injunction, the union then decided to exercise the rights which it had under the law and organized and seek a contract with these employers.

    And in their zeal, instead of — they say we should — that Oliver and the owner-operators should have petitioned for an election.

    Well, that right is — they have that right to petition with the election, too.

    They chose to strike the owner-operators and A.C.E and they also chose to strike A.C.E.

    And so the owner-operators, a large group of them and big companies filed charges for the secondary boycott with the board.

    And that the identical leases were in effect and the trial examiner found that these leases made the lessees independent contractors, the one that was appealed to the board, the board confirmed that position.

    Charles R. Iden:

    So we have — we’ve had four people that have examined the relationship between these lessors and A.C.E, four courts, four tribunals and everyone of them just said that they’re independent contractors that we can’t beat them.

    William J. Brennan, Jr.:

    What’s the difference — what’s the — what —

    Charles R. Iden:

    I’m not making the assumption that removes that from the case.

    Hugo L. Black:

    What difference does that make on the issue here whether you call him an independent contract or something else?

    If there’s a power to negotiate to do this, what difference does it make whether he calls himself an independent contractor or just a contractor or something else?

    Charles R. Iden:

    When he’s called a contractor, he was a — he was a separate employer.

    What are you going to do with each case, where the union would make a contract and with — a rubber company to determine the price of tires or the wages of their suppliers or that type of thing, they wouldn’t call him an independent contractor in the contract but he was an independent employer.

    He was an employer under the Act, that’s — that’s the reason.

    Hugo L. Black:

    Well, the problem — isn’t the problem whether they have a right to negotiate over that and enter the contract.

    And may I ask you this, I don’t — maybe you’re right.

    Can it be true that you can assume that it’s unlawful to enter into a contract and yet that the Labor Board or the other board has the power to force you to negotiate it over it in the other end of a contract?

    Charles R. Iden:

    Because the board has the jurisdiction to enforce the antitrust laws.

    Hugo L. Black:

    Well, I understand that but in determining whether it’s a negotiable thing and whether they should enter into it, is the board barred from saying, “We’ll, we’re not going to let you negotiate over this because that’s a plain violation of the law.

    Suppose there’s a — negotiating on whether seven people should be assaulted.”

    Charles R. Iden:

    I — I would — well, assaulting would be a little different.

    But I would like to agree with you on that but following my piece of though, I can’t, that board does not have an antitrust jurisdiction whereas the Interstate Commerce Commission.

    Hugo L. Black:

    I understand it.

    It doesn’t have antitrust jurisdiction but does it have jurisdiction to decide whether or not this is a legitimate subject to negotiation —

    Charles R. Iden:

    Well, probably —

    Hugo L. Black:

    — on a legitimate subject of contracting.

    Charles R. Iden:

    Now that, it was properly presented but there was no opportunity to present this.

    William J. Brennan, Jr.:

    Well, there wasn’t because you agreed.

    You agreed to (Inaudible)

    Charles R. Iden:

    Yes, we agreed.

    But that is (Voice Overlap) —

    William J. Brennan, Jr.:

    (Voice Overlap) —

    Charles R. Iden:

    — the fact that it was accomplished fact.

    As —

    William J. Brennan, Jr.:

    Mr. Iden, may I just ask you this.

    Doesn’t this case really come down to this simple question?

    William J. Brennan, Jr.:

    If this case, a legitimate subject to collective bargaining as a protective right under federal law, to what extent may the State, through its courts, by this Valentine Act or otherwise enforce this agreement of Oliver’s in such why as to nullify the agreement made between you and the union?

    Charles R. Iden:

    We’d get down to the —

    William J. Brennan, Jr.:

    Doesn’t it go down with that?

    Charles R. Iden:

    We get down to the Garner decisions and the decisions in your (Inaudible).

    William J. Brennan, Jr.:

    Well, how — what about Hill and Florida?

    That was a matter that they couldn’t possibly have gotten before the Labor Board and yet this Court held that the basic federal policy to allow employees to complete premium of choice of representatives so preempted that subject matter —

    Charles R. Iden:

    But that was —

    William J. Brennan, Jr.:

    — that the State of Florida could not require union agents to register in Florida.

    Charles R. Iden:

    Well, that was a protective matter that — (Voice Overlap) —

    William J. Brennan, Jr.:

    Does that pertain to the issue we have here?

    Charles R. Iden:

    No, that was —

    William J. Brennan, Jr.:

    I’m not suggesting the result but isn’t that basically the issue?

    Charles R. Iden:

    That was a protective matter in protecting the right of organizations.

    That question isn’t in this.

    William J. Brennan, Jr.:

    No, no, isn’t it basically the same issue?

    If this is the proper subject to collective bargaining protected by federal law made the State in anyways interfere with through enforcement of these independent contractors.

    Mr. Justice Black said what difference does it make, whether this independent contract is all we have?

    Charles R. Iden:

    Now, let me —

    William J. Brennan, Jr.:

    The problem is whether the State may enforce that independent contract in place of the superior federal right to bargain collectively upon the matters covered by 32.

    Charles R. Iden:

    Let me answer it this way.

    The theory of the Act is to protect employees in their right to organize and in the negotiation for contracts and upon the negotiation of the contract, the aim of the Act is to require it to be reused to writing and signed for the parties that that request was made.

    There the Act stops.

    The entire debate in the Congress, the decision to this Court have inclusively emphasized that once the contract was made then it is subject to the supervision of the Courts, provision shall be enforce with the Court.

    William J. Brennan, Jr.:

    Well actually, supposed it’s been a breach of this agreement.

    Where would have been action as against the union on the part of your client?

    Charles R. Iden:

    They — they could have been sued in any Court with which jurisdiction —

    William J. Brennan, Jr.:

    Well, could have been —

    (Inaudible)

    William J. Brennan, Jr.:

    Could have been sued at all under Section 3 of the Labor Act, isn’t it?

    Charles R. Iden:

    It could have suable in federal court under that Section of the Act.

    William J. Brennan, Jr.:

    Federal law would’ve applied?

    (Inaudible)

    Charles R. Iden:

    In — in that case, the federal law would apply, he could have been sued in the state court because in the debate in the House and that debate is —

    William J. Brennan, Jr.:

    Can you sue him (Inaudible)?

    Charles R. Iden:

    Oh, yes.

    The — the reason for 301 in the examination of the debate in the House which appears as a supplement in a — to an opinion in a recent case, that was the — yes, Textile Worker — Lincoln Mills, the debate is largely there.

    Originally, they provided that the breach of a contract would be an unfair labor practice and that was taken out because for the definite reason that the suits for damages or the enforcement should be in the Court.

    At one time, they said it should be — could be brought in the courts of any state and in the United State’s Courts.

    And the — and the reference to the States was withdrawn for this reason.

    Why — Congress tell they could not impose their will upon the States because some states you can’t sue labor unions without serving every individual union.

    That doesn’t — in Ohio we don’t have that.

    We can sue an incorporate organization for suing (Inaudible)

    William J. Brennan, Jr.:

    (Inaudible)

    Charles R. Iden:

    Yes, it’s right.

    And so that — we’re not as familiar with that.

    William J. Brennan, Jr.:

    But in order to apply (Inaudible) with the Ohio courts?

    Charles R. Iden:

    Oh, Ohio courts can —

    William J. Brennan, Jr.:

    (Inaudible)

    Charles R. Iden:

    — would apply state law and federal law where the federal law had preempted.

    William J. Brennan, Jr.:

    (Inaudible) by the state laws?

    William O. Douglas:

    A State would not (Inaudible)

    Charles R. Iden:

    To the interpretation of the contract — we certainly couldn’t interpret the state law to the extent of saying something with — was unlawful which the Congress had said was lawful.

    I don’t go that far but certainly the forum would apply its own procedure and its own rule.

    And the reason that they took out and the state courts is for the very reason that in — I think 35 of the States, the debate determined that — you could bring the action in a state court.

    Some of the debate would — well, what the federal court didn’t act at all because you can sue it in a state court to get plenty of jurisdiction historically there, bringing that action there, and it’s up to those remaining states if they want to get in line so that the action should — can be brought there.

    That’s their problem.

    Well, they — the debates still went on.

    That — and they quote it from Truman’s report and that all is in there that there should be a remedy.

    If you’re going to have a contract, it should be enforceable.

    And so that we are going to — the Congress is going to put some jurisdiction in the federal courts so that even in those states where you can’t sue in the state courts, you’re going to be able to go the federal court without worrying about the jurisdictional amount or citizenship.

    Charles R. Iden:

    And they — so that there’s no question if Congress intended that these contracts be enforced in this — in the courts where the broad picture could be had.

    That’s a — oh, you assumed that there’s no — assume for the moment that there’s no preemption under the Labor Act or under the Interstate Commerce Act.

    Where do you come off under the Norris-LaGuardia Act?

    Charles R. Iden:

    The —

    Or, maybe more specific.

    Supposing you reached that stage and one reaches the conclusion that an antitrust suit could not be brought in the federal courts to enjoin this contract because it runs afoul in the Norris-LaGuardia Act.

    Where does that leave you in the state courts?

    Charles R. Iden:

    I’m — I’m assuming that this case was tried as an antitrust case and as an antitrust case it can be enforced in the state or federal courts depending which anti —

    Do you think the Norris-LaGuardia Act has got nothing to do with it?

    Charles R. Iden:

    That’s what this Court has said in Allen Bradley and in Gibbony, the whole line of antitrust cases.

    I have discussed Norris-LaGuardia not directly but in my section of my brief in the application of the antitrust statutes on page 31.

    I see that I’ve mentioned the Act, I had it in my mind, and I went on to cite Allen Bradley where a union contract was held to violate the federal antitrust laws.

    Certainly a tribunal not the board interpreted that contract and this Court said they have the authority.

    Then in the Gibbony case, the state courts of Missouri interpreted the State — a union contract that held what was contrary to Missouri antitrust laws and this Court affirmed it.

    I like to refer this Court to one case that I think says — gives my argument better than I can and that’s the Massachusetts case of Commonwealth versus McCue.

    The decision obviously is not binding upon this Court.

    It wasn’t binding upon the courts of Ohio.

    But that was the basis where the decision in the Court of Ohio is in the McCue case.

    In that case, the state court told that certain activities violated the Massachusetts antitrust laws and then they arrested the union leaders and tried them under the federal antitrust laws and found them guilty.

    That — it — if this Court would read Common Law versus the McCue cited in my brief and if they can find that that Court was right, then it will have to find that the courts in the State of Ohio were right.

    Every issue was in there.

    Every argument made and fought bitterly.

    In that case they even removed it to the federal courts, and the federal court remanded it back.

    They used every device in that case to test jurisdiction.

    I would entirely rely in my case on that Massachusetts’ decision to Commonwealth versus McCue.

    That was — in that case the State was the plaintiff.

    There was the common pleas decision in Ohio in which the same statute was enforced that the — an action of the prosecuting attorney so that the State can bring antitrust actions against unions.

    But in my section on page 31 on the antitrust statute this is a question that the courts had the jurisdiction to interpret the statutes.

    Now, where are we going to get if that isn’t the law?

    Last week, the Supreme Court of Ohio held that the union contracts providing for supplemental unemployment benefits was contrary to the statutes of Ohio with respect to unemployment compensation.

    Charles R. Iden:

    Well, certainly are we going to close every contract that the union makes with a complete immunity from scrutiny?

    Could the — the antitrust divisions of the Government is always looking down their nose if the rubber companies enacting for their pricing method.

    Now, if we’re taking the argument that only the National Labor Relations Board could even view and review a union contract, all we have to do to get around any law is to have the union sign the contract fixing the price of tires with the company.

    Certainly the price of tires affects the ability to cut, I mean, to pay wages to their employees.

    And so if the rubber workers can make a contract with Goodyear fixing the price of their tires and then go to the Goodrich and fix with identical price with Goodrich tires and for Firestone, and if this Court or any other court would say, “Well, you can’t inquire in, I’ll bring your prosecution on the antitrust laws nor can you easily inquire into it because the union is a part of that contract,” where are we going?

    Once the contract is negotiated, the functions of the board has ceased.

    There’s no way to go there.

    There is no provision in which the board can review the provisions of the contract.

    It’s only left to the courts —

    Hugo L. Black:

    Is your —

    Charles R. Iden:

    — and this Court has said that in all this antitrust cases.

    Hugo L. Black:

    Is your argument based on the fact that this was a combination of a union with competing companies?

    Charles R. Iden:

    Neither of them were competing.

    Certainly, there’s 500 carriers in equity.

    Hugo L. Black:

    I’m not talking about so far as your client is concerned.

    That — that —

    Charles R. Iden:

    In my view, this is an antitrust case.

    This is not a labor case.

    This is an antitrust case and the view of the Court in my opinion while they don’t — without question the Court was taking into consideration that it violated the prior existing contract.

    But it also was an antitrust case that in my view of it —

    Hugo L. Black:

    Where —

    Charles R. Iden:

    — it was primarily an antitrust case.

    Hugo L. Black:

    Did you — what — what did your client have to do with it?

    Did he sign the contract?

    Charles R. Iden:

    The contract was enjoined before we signed it then the Court from the journal entry authorizing the provisions of the contract to be signed, saved, Article 32 would not be effective.

    So then we signed it.

    But we had not signed it until the Court authorized it to be signed freed of Article 32.

    Charles E. Whittaker:

    Oh, I didn’t understand that, I’m sorry.

    Charles R. Iden:

    The action was brought, an injunction was granted against signing the contract.

    We did not sign it because we were enjoined and then — there was a motion made and the contracts had with the Court and the Court put — signed an entry which is part of the record in which it authorized the contract to be signed by our — by our clients and the carrier.

    Charles E. Whittaker:

    The contract — I’m talking about the (Inaudible)

    Charles R. Iden:

    The union contract.

    Charles E. Whittaker:

    (Inaudible)

    Charles R. Iden:

    That’s right.

    Charles E. Whittaker:

    (Inaudible)

    Charles R. Iden:

    And it saved — and except Article 32.

    So the entire contract became then effective.

    William J. Brennan, Jr.:

    May I ask Mr. Iden, does it appear whether you’re willing to sign it, the 32 in it, that your clients were willing or not?

    Charles R. Iden:

    I think the evidence showed that we have negotiated it with — by our agents and the — under the law once the contract — we couldn’t — we knew we couldn’t refute the authority of —

    William J. Brennan, Jr.:

    (Voice Overlap) —

    Charles R. Iden:

    But for the restraining order, we wouldn’t have signed.

    That’s in the record, no question about it.

    This journal entry I was referring to appears on page 14 of the record in which the contract — the party — carriers were authorized to sign it.

    Originally —

    Hugo L. Black:

    Who signed it, the carrier and the —

    Charles R. Iden:

    And the union.

    After the —

    Hugo L. Black:

    Anybody else?

    Charles R. Iden:

    What?

    Hugo L. Black:

    Anybody else besides the carrier and the union?

    Charles R. Iden:

    No, that was — it was a contract — the labor contract between the union and the carriers.

    It’s signed by every carrier in the State.

    That’s in the record.

    William J. Brennan, Jr.:

    Well, the restraint actually was against carrying out the (Inaudible).

    Charles R. Iden:

    Well, yes, which was — mostly the same.

    William J. Brennan, Jr.:

    In other words, the contract was signed including (Inaudible).

    Charles R. Iden:

    Well, yes.

    William J. Brennan, Jr.:

    Against you’re carrying it out.

    Charles R. Iden:

    Yes, it’s saved — it’s saved Article 32.

    So that the labor contract portion of it which have affected our employees was in effect.

    Charles R. Iden:

    The — the federal court in C.L. Mead versus Teamsters, 230 F.2d 576 was not in my brief.

    There was a strike contrary to this union contract in effect between the Teamsters and the C.L. Mead and they had a strike and the carriers sued the Teamsters for breach of contract and that case in the federal court.

    And the — in that case it was held that the action would lie.

    Well, certainly whatever you’re suing for damages under any contract, union or otherwise there’s certainly a requirement that the Court look at the contract and interpret it to see whether there’s a — the plaintiff show this to the defendant.

    This certainly — implicit in all these cases is the fact that courts can interpret these contracts.

    But I say Allen Bradley is the leading case, you got Gibbony which is the reverse that the state antitrust laws can be enforced.

    We got the Plasterers case.

    William J. Brennan, Jr.:

    Was that a picketing case?

    Charles R. Iden:

    By the — no, it was not a picketing case.

    If you start getting strike, then you get an unfair labor practice.

    William J. Brennan, Jr.:

    But what — I mean, those cases you’ve mentioned, aren’t they all picketing?

    Charles R. Iden:

    Oh, the Allen Bradley knows the combination between the electrical contractors and electrical unions and New York provided that the contractors wouldn’t purchase any electrical equipment by what was manufactured by the unions in New York then effectively cut everybody else out of the electrical field in New York City and the — this Court held that was contrary to antitrust laws and certainly you permitted some court to interpret and interfere with the union contract and it wasn’t the board.

    And the same thing happened in Gibbony.

    There’s no strike there.

    They thought about a strike here.

    No question about it.

    It’s been an unfair labor practice but there was no strike.

    The Plasterers case was a similar combination between the plastering contractors and the unions in Chicago.

    These are antitrust cases.

    The Massachusetts Fisheries case was an antitrust case which arose — the facts are identical other than in the case, when we’re talking about boats and fish, in this case we’re talking about trucks and freight.

    It was the same combination.

    Charles E. Whittaker:

    But may I ask you this?

    It’s a part from the question (Inaudible)

    I understood that all of Mr. Oliver’s (Inaudible) was outside the provisions of the Article 32, saved such of it, and he asked he might drive (Inaudible) with himself.

    Is that not correct?

    Charles R. Iden:

    This case was tried in theory that the — that the union contract so far as in my opinion affected all of his equipments and certainly affected of all, he was driving it.

    Well, he was driving it that it gets within the contract and he did drive it.

    Charles E. Whittaker:

    Well —

    Charles R. Iden:

    And that he — that was the theory it was tried on.

    Charles E. Whittaker:

    If I may (Inaudible) — do you notice from the note in — on page 239 of the record that (Inaudible), it means owner, driver-owner and nothing in this article argued here, shall apply to any equipment you leased, it’s not fair upon these (Inaudible) employed as driver.

    Charles E. Whittaker:

    There’s no doubt about it, specifically as possible to take out of the provisions of Article 32, all of the lease except that which have been provided (Inaudible)

    And it precludes as found by (Inaudible) that as respects the interstate carrier — company before (Inaudible) and that respects the A.C.E Company (Inaudible)

    Now, what trucks would he drive about those times when there’s some — get the truck — how would you know whether one truck that he might be driving — which truck Oliver’s would be driving?

    Charles R. Iden:

    He assumed the right and did drive any truck indiscriminately.

    So that certainly the — this contract would — and the union’s view would have been effective while he was driving this — this — the little truck he was driving.

    So, that I would say that while he is driving a truck and as long he assumes that right then as to those trucks that those days then this contract that the union attempted to put in would have been effective had it been signed in but for the injunction.

    Hugo L. Black:

    Your time is up.

    If either one of you — either one of you desire to supplement by any kind of brief or memorandum which you have said about the Norris-LaGuardia Act.

    Some of the Members of the Court have asked questions about that, either argue or wish to supplement what you’ve said about it.

    Let us know.

    Charles R. Iden:

    We should be pleased to do so Your Honor.

    Hugo L. Black:

    When?

    Charles R. Iden:

    Within the limitations established by the Court.

    Hugo L. Black:

    What — what limitations?

    Charles R. Iden:

    On the time limitation.

    Hugo L. Black:

    How much will you — when could you do it?

    Charles R. Iden:

    I think we can have it here within 10 days, Your Honor.

    Hugo L. Black:

    Take 10 days?

    Charles R. Iden:

    Seven days.

    I assume that you would prefer to have it printed, that — that would be the only problem, printing it.

    Hugo L. Black:

    Well, if it’s not printed, when could you do it?

    Charles R. Iden:

    Have it here in five days.

    Hugo L. Black:

    A weekend, (Voice Overlap) —

    Attorney:

    The Court’s order — well, it points out there’s a weekend intervening.

    Charles R. Iden:

    Would you want simultaneous memos or you want to chance to reply to each other?

    It makes no difference to me.

    Well, —

    Hugo L. Black:

    Well, maybe that you are satisfied.

    Some of the members have expressed an interest in the last question —

    Charles R. Iden:

    If our — if our reports, we’ll put a memo in, I’m sure we will exercise the same prerogative.

    Charles R. Iden:

    This is — we don’t give a quarter in this case.

    We have to get — we’re not starting.

    Hugo L. Black:

    Well, you say you can get the memorandum —

    Attorney:

    We can.

    We — we think there’s a very simple (Inaudible) to the Norris-LaGuardia Act.

    We think only jurisdiction of the federal court in this case was not presented in the federal courts but we — we could get that in here very properly Your Honor.

    That would —

    Hugo L. Black:

    Why would it take you five days then?

    Why would it take you five days?

    Attorney:

    We’ll — we’ll mimeograph it, we can have it over the weekend Your Honor, we’d do that.

    Hugo L. Black:

    Why not do that?

    Charles R. Iden:

    There’s a — there’s a weekend intervening, I’ve been in Washington for — since Monday and [Laughs] —

    Perhaps the view of Mr. Previant —

    Attorney:

    We can have it —

    If I got it, you don’t think the Norris-LaGuardia Act has got nothing to do with it.

    Charles R. Iden:

    I think that that refers only to the jurisdiction of the federal court with the matter of litigated in the Court, I believe that’s the answer to it.

    If you take that position, I’m not sure but so as far as I’m concerned, I want the brief.

    Hugo L. Black:

    Well —

    Charles R. Iden:

    We will have it right here about Monday morning Your Honor.

    Our position —

    Hugo L. Black:

    If that’s what it’s going to be, why, you know that.

    There’s no — I see no reason, just fine.

    Charles E. Whittaker:

    (Inaudible) Mr. Previant?

    David Previant:

    I believed that’s the answer to the problem with Norris-LaGuardia that affects only to jurisdiction of the federal courts and not the state courts.

    Hugo L. Black:

    Yes.

    David Previant:

    It’s a limitation on federal court jurisdiction.

    Attorney:

    That’s right Your Honor.

    (Inaudible)