Local No. 438, Construction & General Laborers’ Union, AFL-CIO v. Curry – Oral Argument – November 08, 1962

Media for Local No. 438, Construction & General Laborers’ Union, AFL-CIO v. Curry

Audio Transcription for Oral Argument – November 07, 1962 in Local No. 438, Construction & General Laborers’ Union, AFL-CIO v. Curry

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Earl Warren:

Local Number 438, Construction & General Laborers’ Union, AFL-CIO, Petitioner, versus S.J. Curry et al.

Mr. Pearce, I believe you were arguing, you may continue your argument.

Edwin Pearce:

Mr. Chief Justice, may it please the Court.

The Court yesterday expressed interest in three areas and I think in view of my limited time I’d rather confine myself to those three areas that were mentioned and I will do that.

The areas to which I referred to a question of all, Mr. Justice Brennan expressed an interest in discussion of the Ledbetter case and I believe Mr. Justice Harlan expressed an interest in the writ of prohibition as a remedy and I believe Mr. Justice Goldberg expressed an interest in the possible adjudication through a contempt procedure of this area.

The Ledbetter case perhaps is best the starting point for that, a case I’m sure is committed to the members of the Court.

It arose out of Alabama.

An ex parte injunction was granted on application of the plaintiff without any hearing.

A motion to dissolve was made by the defendant union.

The motion was overruled.

The Alabama Supreme Court affirmed and it was brought here by certiorari.

And the Court with a dissent, ruled that the case did not present sufficient finality to warrant it being decided by this Court.

A thing or two about that case that I would like to mention.

It of course came at the time when the courts were just beginning to feel the impact of the Section 7 and other rights guaranteed by the Taft-Hartley Act which I believe was in 1947 and I believe this case finally reached this Court in 1952.

I suppose it was a trickle of new cases coming, but even at that time, the lawyers representing the unions realized that the temporary injunctive orders of the state courts were going to be used, at least in many areas, as an effective bar to exercise of these rights and for that reason that case was brought.

It was the argument made in that case as well as I can discern it from the opinion is that the case would be moot if it were not decided at that point and therefore, the petition would be without remedy.

There was an interesting thing said in that case, but I’m not sure what it means because I’m not familiar with Alabama procedure, but whatever it means, it’s clearly furnishes a basis of distinction between that case and this case, the case at bar.

After stating that the case would become moot, the petition would be left without remedy, the Court said, “Well, we don’t understand that to be a ground for enlarging our jurisdiction with respect to finality.”

Then this statement was made, “Furthermore, the interlocutory decree could have been readily converted into a final decree, and the appeal could have proceeded without question as to the jurisdiction just as effectively and expeditiously as the appeal from the interlocutory injunction was pursued in this case.”

The statement I’m interested in is, “could have been readily converted into a final judgment.”

Now whether that refers to any procedure in Alabama by which the defendant without the consent of the opposite party could request and obtain a conversion of a temporary order into a final judgment or whether it has reference, as I think it does, to the more speedy procedure in Alabama to which I have been to some extent exposed and know that a final trial can be normally reached there within perhaps a few weeks.

William J. Brennan, Jr.:

Well, Mr. Pearce, I recall in my own practice in New Jersey in situations of this kind, it was possible for the defendant to consent the entry of a permanent injunction on the record on which the temporary order had issued and that’s the way we used to avoid this.

Edwin Pearce:

Yes, sir.

William J. Brennan, Jr.:

Is that what you think that has reference [Inaudible] —

Edwin Pearce:

I stated that it may refer to that in Alabama.

It may also refer to the fact that only a few weeks will intervene in that state between the temporary hearing and the trial here om merits.

It could easily refer to either one, but whichever it refers to, let me make it very clear that in Georgia that cannot be done and if I —

William J. Brennan, Jr.:

A defendant could not for example in this instance —

Edwin Pearce:

Could not have.

William J. Brennan, Jr.:

— could not have —

Edwin Pearce:

That if I may just make this statement, has been tried a number of times, I believe in these cases, these 45 cases most to which I managed to lose and I have never been able to get one converted into a permanent injunction.

The Court will say, “You can consent to a permanent injunction, but you consent then to the injunction, you may not then appeal it.

I mean, it’s a consent to the injunction.

You have no right to say that it shall be considered permanent, although, you could get the consent of the other party and never were able to get it.”

Actually, we asked for it in this case and did not get it and I’ve asked for it in every case I had, and did not get it and the Georgia procedure will not permit you to do it.

William J. Brennan, Jr.:

Well, the practice I — I was familiar with was not of consenting to the permanent injunction only to assenting, if you please, to the entry of a permanent injunction on the record on which the — that temporary —

Edwin Pearce:

That is impossible in the Georgia procedure.

You may not do that.

Short of consenting to the injunction itself which falls into further complaint about it or appeal, you may not without consent of the actual party do anything to cause the temporary injunction be treated as a permanent injunction.

So, whatever that phrase means in that, I know it means something proper, I mean, something that is true, but whatever it means either speed of court or procedure, we don’t have it in Georgia and it is absolutely impossible to accomplish that and we didn’t.

Arthur J. Goldberg:

[Inaudible]

Edwin Pearce:

In this case, there was no request by me of the Court to treat it as a permanent injunction because I have made the request before and then denied and no authority in my state in that for doing it.

As far as getting it tried, it can’t be tried because under this system, we have — a case is not ripe for trial until it reaches a certain point from the bottom of a long list of active cases and according to the certificate of the clerk that’s a minimum of 12 months.

We have no right to go in and say, “This case should be taken out of turn,” That I’ve tried without success, neither of those things that I asked for in this case because I have had a history there of not being able to get either of those remedies.

So —

Earl Warren:

Even injunctions have priority on the calendar in your state?

Edwin Pearce:

Not on the trial of — on the merits, not on the final trial.

Earl Warren:

The merits.

Edwin Pearce:

It is true that when a judge in our state issues an ex parte order without a hearing —

Earl Warren:

Yes.

Edwin Pearce:

— he will give some consideration to a speedy interlocutory hearing and by that, we may get in three to four or five weeks, sometimes sooner if the judge is willing to go out of his way to do it.

But the — hearing on the merits may not be pushed forward in any way in the world that just isn’t possible to do it.

And I say that both, as a matter of law and a matter of actual practice and attempt to be there.

If the Rule that you referred to in your argument prevent you from consenting for a temporary sentence or permanent injunction of the rule in the general application?

Edwin Pearce:

I would think so because the way the Courts put it to you, you have to say, “We consent to the above and foregoing judgment.”

Now, the minute we do that, we don’t have any right to appeal, but they would let us say we consent to the judgment that has been issued being put in permanent form,” if they would let us do that, then of course, I could travel.

But it’s a Rule [Inaudible] the Rule limited [Inaudible]?

Edwin Pearce:

No, sir.

It’s not limited to labor cases, no sir.

The plaintiff has a right.

Edwin Pearce:

I mean there maybe this substantial right the plaintiff may have in other types of cases he may wish to wait until final trial to put in whatever he wants to put in the Court.

In other words, if he’s willing to have you go up at this point, he can consent but if he isn’t willing there’s no way that we can deprive him of his right to wait until calendar time and try his case in due course on the merits.

I don’t know whether that’s peculiar to Georgia or not.

I doubt it is although there maybe other places of states where they have a procedure that the defendant can request or consent that the injunction in temporary form being made permanent without losing his right to appeal.

That cannot be done in Georgia nor it cannot be expedited in any way, the permanent hearing.

What would happen if the sentence simply said I had no further proof to put in on the merits to arrest?

Edwin Pearce:

Nothing would happen.

In other words the judge has signed the interlocutory —

Tom C. Clark:

[Inaudible]

Edwin Pearce:

Sir?

Tom C. Clark:

There be a trail?

Edwin Pearce:

There would be a trial 12, 15, 18 months later, yes, sir.

If it go through the trial docket, it wouldn’t [Inaudible] the judge wouldn’t make any entry at all on that statement.

That, I would be glad, I know this is a point of interest and I would be glad to refer to the brief then but our state to this Court as a matter of law and as a matter of practicality in having them tried, this can’t be done.

You either — you can take your temporary order up as we did in this case but you can’t ask that it be made permanent unless the other side will agree to it which the case then of course any order that you and the other lawyers agree to the Court will make.

And now I’m going to finish so I’m going to hurry a little bit.

Now in that case the question of mootness was made but it was at an early time.

Now when we — this was — this Ledbetter case was before the Garmon case and before the Garner case and Weber against the Anheuser-Busch, and the other cases in which the doctrine of preemption was announced by this Court as a jurisdictional doctrine, that is that the field is preempted.

When those cases came along, we thought then this is our remedy.

If the Supreme Court has announced that the state court is without jurisdiction in this field, certainly the state courts won’t assert you.

And certainly if they do, we can have it reviewed by the federal court.

It took us 10 years and I’ve documented those 10 years to find out that two things for sure in Georgia now exist.

Number one, that the state court temporary injunction is a specific and effective antidote to the exercise of Section 7 powers and secondly, that the Georgia Supreme Court will not pay any attention to the preemption doctrine.

Those are documented by the cases in the brief.

Those two things exist.

This case came along and it’s like the typical case.

It infringed on the rights.

It had a meant — a mention in the petition of a right — a violation of a state right to work law.

The evidence showed that there was no substantial evidence introduced from which that could be found.

The trial court on the interlocutory injunction exercised here its discretion was persuaded but this case was so weak that he should not grant a temporary injunction.

Edwin Pearce:

For once, we went in the trial court, he said, “The injunction should not be granted”.

This was taken after the Georgia Supreme Court and they said the evidence demanded a finding of the injunction and sent it back and said, “You must enjoin this picket”, which is the strongest case I could ever get.

In other words, the man with the discretion said, “No injunction”.

The Supreme Court said, “This record demands an injunction”.

So now we brought it to this Court with two things that we want to point out that may be differ from the Ledbetter case.

Number one is Ledbetter case talked about mootness and talking about finality as a practical matter.

I have tried to demonstrate that in this area, in this state, as a practical matter, the interlocutory injunction is found and denies your rights.

And I also point out that if in Alabama as this Court has said, the interlocutory injunction could have been readily converted into final judgment.

The case at bar from Georgia differs.

We cannot do it.

We are faced with a minimum of 12 months and the clerk was very conservative, he didn’t much like the idea of publishing how slow we were, so he set a minimum of 12 months and we’ll go on that.

Actually, it’s about 18 in the normal case.

We have shown that that’s how long it takes to get one to the final calendar and we’ve shown that in every case in the last 10 years not one has ever been tried, not one, 45 cases, I think I had 33 of them.

Not one could ever be made to go in a final trial.

Earl Warren:

Now what — I didn’t get your last sentence.

Edwin Pearce:

I say not one was ever reached on the merits.

Earl Warren:

Yes.

Potter Stewart:

Because they’re moot by that — at that time, is that what you mean?

That the —

Edwin Pearce:

First of all, it strikes all a long wail, your right sir, have gone, that’s number one. Number two is and I got this close for once.

I got it — I got me a picket, and he stayed out then we kept it alive, nurtured it, and kept it alive, and incubated it.

And when we got it raised, the final [Inaudible] came in and said, “I dismiss”.

You can’t stop him, United States.

He dismissed.

Now, I got nothing to appeal, no case at all.

You can’t do it.

It just can’t be done.

If you — if we can’t get relief in the interlocutory hearing, Section 7 rights are not existing in Georgia.

Now, we have made — what I think it’s a very good departure from that rule in Pope against Atlantic Coast Line, that was a case in which a resident of Georgia wanted to bring a demonstrator against the railroad under the Federal Employees Liability Act which gave him the right to bring it as a transit action in Georgia, Alabama.

He brought it in Alabama because he was a resident of Georgia and because I — the Courts had jurisdiction over his person.

Edwin Pearce:

The Court issued an order — I mean, didn’t issue an order.

They — well, they did issue a temporary order, but rested on a petition to restrain him from prosecuting that case in Alabama which of course was depriving him of his right to bring cause of action under the Federal Employees Liability Act.

The case actually came up and this came from Georgia and I’m therefore familiar with the practice.

This came up on something that is about as [Inaudible] as anything we held there really on demurrer.

The defendant demurred.

The trial court sustained it.

It was appealed to our Supreme Court and they overruled the order sustaining the demurrer which only said, “This petition states a cause of action and may be tried.”

That was appealed by the claimant to this Court as is on certiorari.

This Court granted certiorari and to protect the right of bringing the suit under the Federal Employees Liability Act reversed and remanded, and said, that he had the right to bring the suit wherever he wanted to.

The important thing there is in the departure.

I won’t call your attention as that comes up on demurrer here.

All the demurrer adjudicated was that the petition with all of its allegations that the claim was being brought in Alabama for fraudulent and vexatious and harassment purposes stated a cause of action.

We don’t know the extent of the fraud without any evidence.

We don’t know the extent of the harassment of the vexatious nature, but the Georgia Supreme Court said, “That sets out a cause of action.”

This Court said it does not and sent it back.

Now we’ve — now have a question in that case of handling a review on demurrer which is, as early as you can get in Georgia, proposing now an order of how we try things and demurrer is the first thing you try then the police filed in the case on [Inaudible].

That extension, every reason that came into that would be in our case.

Of course it was obviously a bad thing.

This man couldn’t bring his case for the years it took.

He might not have a case.

He might not have any witnesses.

He might not have the money to last to bringing the case there.

Even the statute of limitations might run.

I don’t know what Alabama would say about a statute running when another court of another state had enjoined them.

They might give him relief, they might not.

So he was on a bad fix.

He didn’t have a relief then and not at all, but that’s no different from the showing I have made.

We have to have relief here or not at all.

I ask you to look at the Pope case and I gave this citation yesterday and see if the departure I’m requesting is anymore adequate than the departure in the Pope case or there — if any reasons in the Pope case that I wouldn’t have here.

Now, rather quickly because of the time, Mr. Justice Harlan asked me about the use of a writ of prohibition.

Edwin Pearce:

I think that is settled sir by the case of Amalgamated Clothing Workers against Richman Brothers, 348 U.S. 511, in which a precise situation like this arose.

A petition in the state court to enjoin the picketing was filed.

The union first tried to remove it to the federal court.

That removal was denied and properly so by the federal court on the grounds that District Court didn’t have jurisdiction, the Labor Board did.

But with that pronouncement that the Labor Board had jurisdiction, they then made a motion to dismiss the case in the state court.

The state court overruled the motion.

Then the petition was filed in the federal court by the union, the Federal District Court, asking that the state case be prohibited or enjoined and pending that and before hearing, the state court came out and granted the injunction.

The District Court refused to enjoin it, I believe.

Anyhow it reached this Court and certiorari was granted and this Court said that only the Labor Board, the National Labor Relations Board, could bring a petition in the federal court to enjoin the handling of prosecution of a state case, that a private party could not do it.

Now there were three dissents in that case and that case might be [Inaudible] examination that is 348 U.S. 511, but it’s still — it hasn’t been touched by this Court since.

It’s been followed by a number of Circuit Courts but this Court has not, as far as I know, made any further pronouncement on it.

So this Court has said that we cannot do — take that right.

Now, getting to the request here, I’m not going too fast and I guess I’m not going fast enough if I [Inaudible], getting into Mr. Justice Goldberg’s question, he asked me about the Georgia law I believe it’s the [Inaudible] and hit me at the time I could have told you fairly accurately then what it was, I do have it now with citations and it is consistent with the general law.

We are very positive down there that you have no right to violate an injunction simply because it’s wrong and may later be reversed and they’re rather tough in the enforcement of that, if I may add that.

If however, the order is based on absolute — I mean if the order is without jurisdiction over the subject matter, then it’s a nullity, it’s void and the contempt proceeding will be reversed upon recognition of the voidness of the order.

I’m familiar with the case of Amalgamated Railway and Motor Coach Employees and United Gas Corp. and Chemical Workers case against the Wisconsin Employment Relations Board, that’s 340 U.S. 383 in which both case on the merits and the contempts hit the Court at the same time and they said that the Wisconsin Labor Board had no right to be operating in the field that the National Labor Relations Board had and reversed the whole thing, lock, stock and barrel, I suppose the contempts along with the case in Maine.

There is one more case if you let me in my last minute add to that because this case is very close to my heart.

It’s a new case.

It hasn’t gotten in the books yet.

It’s called In Re Green and it was decided in this Court on May the 21st of this year, and it’s case Number 312, and it is reported in the Supreme Court Reporters at 82 Supreme Court Reporters 1114.

That was a case in which the lawyer advised the union to make a test case out of it was himself committed to jail on contempt.

And he tried the rocky road of bail, habeas corpus, and finally reached this Court and got turned loose.

But he got turned loose by a majority on the grounds that his constitutional rights to be heard were infringed upon because the judge in committing him wouldn’t even let him tell why he did it.

There was a strong dissent from — in the result but in the reason for the result by some members of this Court who would I think have kept his lawyer in jail except for the fact that he claimed, he had — he advised this contempt after conference with the trial judge and opposing lawyer and all three of them agreed it would be alright to test it by contempt.

The judge in committing him wouldn’t let him make that statement at all and the minority decision of this Court was to the effect that if you have an agreement with the judge and the other lawyer, certainly the judge ought not to agree that you can make a test case and then puts you in jail for doing it.

Arthur J. Goldberg:

Mr. Pearce, the — is this the case [Inaudible]?

Edwin Pearce:

Let me put it this way, sir.

I suppose there are obvious facts.

First of all if we would advise our clients to do something that a lawyer maybe — would be slowed to do particularly in Georgia where the courts have no patience with it, don’t’ want it done, and will file a pretty heavy penalty if you try to do it.

Then assuming you’re always faced with a parti — with a case where you have put a little something about state law in there even though they’re not going to prove it.

Edwin Pearce:

Now, you’ve got to risk the thing.

That’s the — the Court won’t decide there’s a little bit of state jurisdiction here and therefore he isn’t quite without jurisdiction.

You’ve got to expose yourself to a jail sentence and the consequent perhaps it will also — statute in your community that you achieved by such proceedings.

And maybe the lawyer together with his clients get under rather heavy sentences and all come up by certiorari.

Now, by way at home were not quite agreed on how to pronounce the word ‘certiorari granted’.

We all agree that perhaps the sweetest words in the English language in such a situation by your clients and yourself or have a jail sentence would be those two words but like all sweet things they come with not frequency and without certainty.

And I would say this, that the whole policy, the National Labor Relations Act being to adjudicate and stabilize labor relations as much as possible than to suggest that to obtain a review of the law to be done by the torturous, perilous and rocky route of violating and advising a client to violate the order intentionally and hoping that we will get out at this Court.

We couldn’t get out of Georgia because Georgia has already said they had jurisdictions.

We know where we’d be in our state and our sole threat would be come to this Court and say, “Would you grant certiorari?”

And that I don’t believe would be — certainly — and another thing, suppose we did that and we got an adjudication, it wouldn’t help the Section 7 rights at all in that case, would the Georgia courts pay any attention to it?

They have the Garmon case.

They have the Weber case.

They don’t pay attention to those.

Potter Stewart:

What if you — of all the issues in this case, they are resolving in your favor, will that — will that do any good in Georgia?

Edwin Pearce:

Well — yes, sir.

It’s not dead yet, there’s still work going on.

It’s within what is called —

Potter Stewart:

From what you’ve told us, the Georgia courts had simply disregarded the decisions of this Court.

Edwin Pearce:

Oh, yes.

We have it — we — oh, let me make one more statement for that — I would like this to be in the record if there is such a thing.

I noticed in the Pope case, it was stated that the petitioner freely agreed that he had no other defenses that this federal defense will not have acted upon it.

We readily agree to the same thing.

We have no other defense in the permanent trial.

The Georgia court has already said that the record we have here and we would — couldn’t make a less record is enough to demand the verdict so it wouldn’t mean we got a jury issue.

The Court would have to direct a verdict because the Supreme Court has said it’s demanded.

So, we have no defense at all except this.

This federal question is raised here.

It’s been passed upon finally by the highest court of our state.

It would be contemptuous under our statute for a lawyer to re-raise this point in the Georgia State Court because the question of jurisdiction has been submitted to the Court and passed upon.

We can’t raise it again.

Edwin Pearce:

So this federal question cannot be re-raised.

There is no other question in the case and it has that aspect of finality more so by far than the Pope case says.

Byron R. White:

Is the remittitur in the record?

Edwin Pearce:

The remittitur went down and the Court passed an order making the order of the Supreme Court, the order of (Voice Overlap) —

Byron R. White:

Where is that in the printed record?

I see only a — I see only the judgment.

Edwin Pearce:

Sir, I didn’t hear that.

Byron R. White:

I see only the judgment here, page 45.

Edwin Pearce:

The — I see that the — that — this is the judgment.

Now, the remit — the gentleman give them that, we do have it here.

Byron R. White:

Was there — did you appear in Court when they mandated the Georgia court thorough your trial court, the trial court that is the one that actually entered the injunction.

Edwin Pearce:

Yes sir.

The trial court said this — only considering they were then remitted to it, this order and adjudged back to the decision of the Supreme Court of Georgia be made the judgment of this Court and that the same would be entered on the minutes.

That is a malpractice for the injunction.

Byron R. White:

Well, you — there’s no appearances, nothing.

Edwin Pearce:

You’d — you’re not entitled to.

In other words, just a — the Court accepts the directions of the Supreme Court (Voice Overlap) —

Byron R. White:

And so what did they — what did the Court order?

Edwin Pearce:

That the order of the — yes, we must have appeared because — here, let me read it again.

This case came before this Court upon a writ of error from the Superior Court of Fulton County and after argument had, it is considered and adjudged no way with that sale.

Upon considering the then remittitur is ordered and adjudged that the decision of the Supreme Court of Georgia be made the judgment of this Court and that the same be entered on the merits — on the minutes signed by the Superior Court judge.

Byron R. White:

When was the injunction issued?

Edwin Pearce:

Well, this was the 29th of January, 1962 which was the injunction following the decision of —

Byron R. White:

But the Supreme Court of Georgia did not issue an injunction.

Edwin Pearce:

They — this is on procedures.

The [Inaudible] the Supreme Court of Georgia presented it back, and say, “You issue the injunction”.

Byron R. White:

Well, (Inaudible) — is the injunction issued there or not in that —

Edwin Pearce:

Yes, sir.

I don’t believe it’s in your printed record because of course we will appeal it —

William J. Brennan, Jr.:

[Inaudible] is that the injunction Mr. Pearce?

Edwin Pearce:

Yes, sir.

That is —

William J. Brennan, Jr.:

[Inaudible]

Edwin Pearce:

Yes, sir.

William J. Brennan, Jr.:

Well, how couldn’t anyone know what he’s in — sustain from doing that?

Edwin Pearce:

The petition sets out exactly what injunction he wants.

The Supreme Court said, it was demanded that he have that relief.

The Superior Court judge said, the Supreme Court judgment is made, the judgment of this Court and entered on the minutes (Voice Overlap) —

Byron R. White:

But I still don’t know what is the — I just still don’t know whether injunction had been issued in this case?

Edwin Pearce:

Well, all I can say — I would like to have this made available to this Court, all of it.

Byron R. White:

Oh, I know but all that said is that the judgment of the Supreme Court of Georgia is made the judgment of this Court?

Edwin Pearce:

That in our practice is an injunction because he doesn’t just accept the mandate.

He says, it’s made the order of the Court entered on the minutes.

Byron R. White:

You mean that the —

Edwin Pearce:

That’s his order.

Byron R. White:

The court doesn’t enter an injunction at all?

Edwin Pearce:

It isn’t required, no, sir.

William J. Brennan, Jr.:

In terms Mr. Pearce, I meant — how does one know [Inaudible] —

Edwin Pearce:

I know it (Voice Overlap) —

William J. Brennan, Jr.:

— from doing?

Edwin Pearce:

I’m not unaware what’s puzzling the Court which is an injunction should be specific and you would think the judge would issue another order.

All I’m saying, is they don’t.

This is the way they do it.

William J. Brennan, Jr.:

Well, now, did you appear in Court or didn’t you?

I didn’t quite —

Edwin Pearce:

I don’t think we have a right to.

I —

Byron R. White:

Well, what is the —

Edwin Pearce:

I say we didn’t.

I don’t think Mr. Patton did, no, sir.

Edwin Pearce:

In other words, when the Supreme Court said that under this interlocutory hearing a — an injunction as requested was demanded then all that remains to be done by the judge is not to have another hearing, no more evidence, no reexamination of it but just say okay the Supreme Court said under the evidence in the hearing we’ve already had, an injunction as requested was demanded.

So, the Supreme Court said that is demanded so the trial court just enters it on the minutes as the injunction.

William J. Brennan, Jr.:

Well, does that mean this Mr. Pearce, I’m looking at page 38, the [Inaudible] — in the record.

Edwin Pearce:

Yes, sir.

William J. Brennan, Jr.:

(B) The defendant and all persons acting in association in connection with defendant be restrained and enjoined from picketing or causing the picketing of the construction job of the petitioner, etcetera.

Is that then and under your practice, does that constitute now the injunction?

Edwin Pearce:

Yes, sir, that is the injunction.

Let me say this, the petition always contains and is required to contain under our practice the specifics of the injunction requested —

William J. Brennan, Jr.:

Yes.

Edwin Pearce:

— not just some injunction or an injunction as the Court may direct.

William J. Brennan, Jr.:

Well, that seems to be only paragraph B, does it?

Edwin Pearce:

Yes, sir.

Then, well — paragraph B, yes sir.

Then the judge, if he wants to grant an ex parte, he doesn’t repeat that.

He says, this injunction is granted to this party, that’s the way an ex parte injunction is issued.

And the —

Byron R. White:

On what ground did the lower court deny the injunction, was that an oral opinion or what?

Edwin Pearce:

It was just a written judgment denying the injunction and orally stating perhaps the grounds but —

Byron R. White:

What was his ground?

Edwin Pearce:

I think two things.

I think (Voice Overlap) —

Byron R. White:

Or did you try the case?

Edwin Pearce:

Mr. Patton tried the case and choose to not –-

John S. Patton:

I don’t think — if Your Honors please, that the judge [Inaudible] — to see if I can remember the record, I do not believe this judge specifically enumerated the grounds others to see —

Byron R. White:

Do you mean it could have been — that it’s equitably — it was on equitable grounds that the — that this injunction — interim injunction wasn’t necessary here or advisable or authorized or justify it?

Didn’t they get to the jurisdictional point at all?

John S. Patton:

The jurisdictional point was very earnestly argued by me, may it please the Court, and insisted upon as a ground and as the ground on which the injunction should be denied.

That was the argument that I made and the primary argument that I made.

Byron R. White:

What other argument —

John S. Patton:

And the court —

Byron R. White:

What other argument did you make?

Edwin Pearce:

It was — did not show a violation of the state right to work the law.

That was our obvious argument.

Of course, the evidence really didn’t show it.

John S. Patton:

That is correct and the Court simply entered this order.

Now, I do not recall that he made an oral attention from the — as such from the bench.

There was some [Inaudible] between counsel and the Court but I don’t think that there was — he announced any the opinion from the bench but entered it.

Byron R. White:

Thank you.

John S. Patton:

Is the Court through with me?

I’m through, if the Court’s through with me.

Earl Warren:

Yes.

You may.

Mr. Langstaff.

Robert B. Langstaff:

Mr. Chief Justice, may it please the Court.

I’m R. B. Langstaff from Albany, Georgia appearing for the respondent.

I might add that I have shepherded this case from its very inception in Fulton Superior Court in Atlanta, Georgia.

And in answer to Mr. Justice White’s question, I’d like to clarify if I might sir, inception to my argument the fact that no formal restraining order has ever been issued in this case in Fulton Superior Court.

The order in —

Byron R. White:

Would you say — would you say then these people are not restrained from doing what they’re doing?

Robert B. Langstaff:

Well Your Honor, as I pointed out in my brief, actually the question is rather moot.

The picket line was withdraw prior to decision of the Supreme Court of Georgia.

When the Supreme Court of Georgia handed down its decision, the remittitur was entered on the docket of the Superior Court of Fulton County which counsel had read to you, but there was never an injunction issued from that Court.

Byron R. White:

Well, what is the local practice?

He said, the practice is not to in — not (Voice Overlap) —

Robert B. Langstaff:

I’ll be — eminently disagree Your Honor.

As I understand the local practice, counsel must go in after the remittitur had returned and asked that an injunction be issued pursuant to the order of the Supreme Court of Georgia.

William J. Brennan, Jr.:

You mean you should have gone back in?

Robert B. Langstaff:

Yes, sir.

If the picket line had been there — but we have never taken such an order because the picket line was voluntarily removed.

Byron R. White:

Oh, when you do that, do you do it ex parte?

Robert B. Langstaff:

Yes, sir.

Byron R. White:

And the (Voice Overlap) —

Robert B. Langstaff:

Of course the remittitur is entered from the Supreme Court of Georgia then the trial court is authorized to issue the order based on the remittitur.

Byron R. White:

But how do you know — how does the trial court know which injunct — what the terms of the injunction should be without having some agreement as to the form at least to — from a — from somebody.

Robert B. Langstaff:

Well, it is my understanding that our practice Your Honor —

Byron R. White:

[Inaudible] injunctions — when an injunction is in construction sites for picketing —

Robert B. Langstaff:

Yes, sir.

I think maybe I can best answer that question by referring the Court to page 41 of the record which is the order denying the interlocutory injunction at the original trial court hearing on September the 12th, 1961, which the Honorable [Inaudible] page 4 entered the following order.

This cause came on this day to be heard upon the pleadings in the case, affidavits, all testimony, and argument of counsel from all of which it appeared that the applications for temporary interlocutory injunction should be denied and is so denied.

It is from this order that we appeal to the Supreme Court of Georgia and this — it is this order that the Supreme Court of Georgia reversed sending its remittitur back to the trial court which was duly entered on the records.

The remittitur is not a part of the record Your Honor.

However, if the counsel readily concede that such a remittitur has been issued and if the judgment of the Supreme Court of Georgia has been placed on the minutes of the trial docket or rather on the minutes of the Court of Fulton Superior Court.

However, counsel for the respondent has never requested that a formal restraining order issue pursuant to that remittitur.

Byron R. White:

Well, what did the — we may have the remittitur in the whole record, the unfinished part.

Robert B. Langstaff:

It is not contained in the record.

Byron R. White:

Well, not in the printed record but I suppose there was an original (Voice Overlap) —

Robert B. Langstaff:

I don’t believe you have it sir.

Byron R. White:

Is that all?

Well, what would they say —

Robert B. Langstaff:

I’d be glad the counsel submitted —

Byron R. White:

What did it say?

Robert B. Langstaff:

Well, counsel read it to the Court, Your Honor.

I have never examined the minutes myself of the trial court of Atlanta, but I assume that this is remittitur, the reports to be done.

[Inaudible]

Robert B. Langstaff:

The counsel for petitioner tells me this purports to be the remittitur.

The Honorable Supreme Court met pursuant to adjournment the following judgment was rendered.

This is a judgment of the Supreme Court and not a remittitur.

Well, S. J. Curry Company et al. versus Construction and General Laborers’ Union, Local Number 438, AFL-CIO, this case came before this Court upon a writ of error from the Superior Court of Fulton County.

And after argument, it is considered and adjudged that the judgment of the court below be reversed because the Court erred in refusing the interlocutory injunction, all the justices concurred.

Upon considering that within the remittitur, it is ordered and adjudged that the decision of the Supreme Court in Georgia be made the judgment of this Court and the same being entered on the minutes.

Robert B. Langstaff:

It is further ordered and adjudged that S. J. Curry et al. for use of officers in the Court recover of Construction and General Laborers’ Union, Number 438, AFL-CIO including the cost of making up the record in said case together with a cost — dues to the Supreme Court of Georgia in the said case.

In open court, this 29th day of January, 1962, to our page 4.

[Inaudible]

Robert B. Langstaff:

I might I add Your Honor, this is done by the judge without any intervention of counsel.

It’s [Inaudible] —

Byron R. White:

That’s just making the — entering the judgment.

Robert B. Langstaff:

That’s all.

Yes, sir.

Byron R. White:

Entering the judgment but do you say that’s not the injunction.

Robert B. Langstaff:

No, sir.

This is not the —

Byron R. White:

You don’t say —

Robert B. Langstaff:

And that has never been a restraining order issue —

Byron R. White:

And you disagree that the — you disagree with opposing counsel as to what the practice is, as to what is the injunction [Inaudible] —

Robert B. Langstaff:

Mostly eminently sir.

Byron R. White:

And — so that the District Court, I mean, your trial court does not automatically and in a ministerial manner enter the injunction?

Robert B. Langstaff:

No, sir.

We’ll be glad to supplement a brief later to the Court if the Court so desire.

But it is my understanding of our practice that counsel must request the issue —

Byron R. White:

And the remittitur in so many words or in terms did not direct the entry of an injunction.

Robert B. Langstaff:

No, sir.

It did not, except to reverse the trial court that held that judgment was an error based on the record.

Hugo L. Black:

Suppose the defendants three days after the Court’s judgment after the — they knew about the judgment, had violated the terms of what would have been the injunction if it had been issued.

Would there be any contempt?

Robert B. Langstaff:

No, sir.

Your Honor, I do not think there would have been until we had issued an injunction pursuant to the remittitur.

I do not deny that we would have asked for such an injunction to be issued if the picket line that had been restored.

Hugo L. Black:

Your argument is that they have never been enjoined.

Robert B. Langstaff:

That is correct, sir.

And I think the record so disclose —

Hugo L. Black:

You say there’s no final judgment?

Robert B. Langstaff:

That’s correct, sir, one of the reasons.

I, if the Court will permit to transverse —

Hugo L. Black:

What would you say if there had been a — it’s been entered that the Court could discontinue this technique of holding up the case —

Robert B. Langstaff:

There is the —

Hugo L. Black:

— things like this, by temporary injunctions and they could never get it, the final judgment on the —

Robert B. Langstaff:

Oh, no, sir.

I do not mean to reply.

This is a technique for circumventing this question of finality at all.

But in this particular case which after all we’re limited to in the fights.

The picket line was gone.

There was nothing (Voice Overlap) —

Hugo L. Black:

Well, I’m not talking about that.

What I’m talking about is that, are you arguing to us that Georgia can have a system of passing on these things which by the process of interlocutory injunctions and the denials they give it in the failure to try the case amounts in effect to disposing off the case against a union before it’s been — have this Court review the judgment?

Robert B. Langstaff:

No, sir.

I’m not arguing that, no sir.

Hugo L. Black:

You’re not arguing that.

Robert B. Langstaff:

No, sir, I am not.

If the Court will permit me to digress for a moment, as I view this case and as it is before this Court on the limited writ of certiorari, I think there are three personal case — questions before the Court.

Of course, the first one being the finality of decree, the second were dealing with the jurisdiction of the Supreme Court of Georgia or the trial court of Georgia or in other words, the question of preemption.

And further, the question of whether or not the decree of the Supreme Court of Georgia is justified on the basis of the record that was before that Court.

Now with the Court’s permission, I would like to treat these matters in the order they are –-

Earl Warren:

Well, is there any injunction or not in this case?

Robert B. Langstaff:

No, sir.

There is not an injunction.

Earl Warren:

Has there ever been an injunction?

Robert B. Langstaff:

No, sir.

There has never been an injunction.

There has never been.

And perhaps it would be well if I reviewed for the Court the facts (Voice Overlap) —

Earl Warren:

Is that argued into your brief?

Robert B. Langstaff:

Sir?

Earl Warren:

If that’s in your brief, you argued it in your —

Robert B. Langstaff:

Yes, sir, that is.

Earl Warren:

Yes, very well.

William J. Brennan, Jr.:

Mr. Langstaff, if I may just before you begin.

If you had submitted a formal restraining order, would that have been in the language of paragraph B at page 38?

Robert B. Langstaff:

Yes, sir.

It would have to be in line with our petition with the prayers on our petition.

William J. Brennan, Jr.:

Well, I mean, would it have been precisely that — in other words, all that’s missing I gather is that this very language was not incorporated in the form of an injunctive order which Judge Forrest signed, is that —

Robert B. Langstaff:

That is correct.

Yes, sir.

William J. Brennan, Jr.:

Otherwise, this is precisely what you would have submitted.

Robert B. Langstaff:

Well, I don’t believe that the final order would have been in that language.

I think the final order would have simply been that the trial court would’ve issued an order upon our request that the defendant be restrained from conduct alleged in the petition pursuant to the prayers of our petition.

Earl Warren:

Why didn’t you seek such a — such an order?

Robert B. Langstaff:

Because there was no necessity for it, may it please the Court.

The picket line had been removed long before — actually even the judgment of the Supreme Court, that it’s been voluntary.

Byron R. White:

But the judge was not automatically under a duty — under the judgment of the Supreme Court of Georgia or under the remittitur or the mandate that came down that entered the injunction.

Robert B. Langstaff:

No, sir.

Well, this is not true on our practice.

As a matter of fact, this is the office of the remittitur.

When the remittitur comes down to the trial court the judgment of the Supreme Court of Georgia impressed on the minutes of the trial court and thereafter of course, the case stands as the Supreme Court said it did that the interlocutory order would — should have been granted but no such a question was ever made by the petitioner.

Arthur J. Goldberg:

Mr. Langstaff —

Robert B. Langstaff:

Yes, sir.

Arthur J. Goldberg:

— had it been in fact in the record, [Inaudible] in the judgment issues in accordance with the [Inaudible] of the petition, is that correct?

Robert B. Langstaff:

Well sir, of course, this would’ve been discretionary with the trial judge but in the cases that I have had many experiences about — had this would’ve been about the substance of the order.

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

Well, I would say on all honesty and in fairness to Judge Randolph who was very a capable judge, that his final order would have probably used the language in the petition to the extent that he was — that he would make it clear what the conduct he was enjoining.

Arthur J. Goldberg:

But it is not — was that [Inaudible] on the trial.

Robert B. Langstaff:

That’s — I would have to state that that is so Your Honor.

Arthur J. Goldberg:

If that is so, [Inaudible]

Robert B. Langstaff:

I cannot agree, Your Honor, for the reason that until the Court issued a formal order, until the trial court issues an order restraining the conduct of the petitioner there is no legal barrier against the petitioner’s conduct.

The picket line could have been reestablished without any ramifications until we saw that — that they saw it — too it rather that the trial court enforced the remittitur.

This is the practice —

Hugo L. Black:

I don’t (Voice Overlap) —

Robert B. Langstaff:

— and divorce the proceeding that the practice in any appellate review when the case is returned to the trial court.

Hugo L. Black:

I don’t quite understand that.

Do you mean that the Court, Supreme Court can’t issue its own order?

Robert B. Langstaff:

Oh, yes, sir.

It surely can’t.

Hugo L. Black:

They could have — they could have said we enjoin in this language, does it?

Robert B. Langstaff:

But it did not.

Hugo L. Black:

But it could have?

Robert B. Langstaff:

Yes, sir.

Hugo L. Black:

Do you mean that if when — since they said it, it must be heard and must be entered in an injunction according to the term that the trial court did go contrary to the Supreme Court and issue some kind of — a different kind of injunction?

Robert B. Langstaff:

Oh, no, sir.

No, I do not mean that.

Hugo L. Black:

It had to issue it precisely as alleged, isn’t it?

Robert B. Langstaff:

Yes, sir.

There is no question of what the trial court was bound by the decision of the Supreme Court of Georgia insofar as it related to the decree on merits.

Hugo L. Black:

So that you have here a man with — subject himself with contempt.

He might get out by saying there has been no formal order signed by the local judge, but he could be confined to this, couldn’t he?

Robert B. Langstaff:

This is an interesting question, Mr. Justice Black, and I’m apologizing to the Court that I just don’t know the answer to what would happen if the man was in contempt of this order before a formal order was issued by the trial court.

I would be inclined to agree that the — the remittitur would be — this form and force of an order, I think that the contempt would lie but I can’t answer this question in the affirmative.

Earl Warren:

What is the legal effect of the order that’s under review here?

Robert B. Langstaff:

Your Honor, this is one thing that mystifies me about this case as I was about to argue.

The legal effect of the order, it seems to me this Court is being asked to review and notwithstanding what I thought was going to be a week from the Montgomery case, it appears to me that the argument here has made the Montgomery case even sounder than it appears on its own facts.

What has appeared here and what this case is — what this Court is being asked to review is a decision of the Supreme Court of Georgia on an interlocutory order from the trial court of Fulton County, Georgia.

And with the Court’s confirmation and answer to the Chief Justice’s question, let me review the facts just very briefly.

Robert B. Langstaff:

This petition was filed in Fulton Superior Court and thereafter under our procedure, an ex parte order was issued directing the parties to appear for the interlocutory order.

The ex parte order denied the request for injunction and the matter was set out down 10 or 15 days after that for interlocutory hearing.

At the interlocutory hearing, the petition only, the sworn petition and the affidavits of the respondent here that the plaintiff below, when the county affidavits from the defendants were presented to a trial judge without a jury.

The matter was heard and fully heard by the trial judge and he issued the order, I read it to the court a moment ago.

He denied the interlocutory order.

Thereupon the respondent here, appealed this matter to the Supreme Court of Georgia as we can do under our practice since otherwise, we would be left to the same mercy of interlocutory order of the petition announced that he is from our Supreme Court.

We appealed to the Supreme Court of Georgia and the court of course is familiar with their decision.

Now in the interim, the petitioner has filed, the other defensive pleadings which raised the very same questions that it’s now asking this Court to review before the matter has been completed under the practice — under the practice of the State of Georgia.

For instance, the petitioner has filed a plea in abatement which is the method that we used in the state practice in Georgia in attacking questions of jurisdiction.

The constitutional question involving a preemption of the Section 7 and 8 of the National Act, the plea in abatement remains un-disposed off in the trial court.

It’s on the motion docket and maybe called at anytime by the petitioner for any.

And if the trial judge should rule that the plea is good then the case goes out.

Of course, the fact remains that the Supreme Court of Georgia has decided the question on the merits as presented.

But the question of jurisdiction has never been submitted to the Supreme Court of Georgia other than on argument of counsel.

The question of jurisdiction was not even in attained in the trial court because it was not properly raised under the pleading.

I’d like to point out to the Court if I again may transgress a little bit that the — there are no allegations in this petition involving interstate commerce.

There is nothing in this record as there was in the Farnsworth case out of Tennessee which this Court reversed to which — in which this Court reverses the Supreme Court of Tennessee.

There’s nothing in this record showing an involvement of interstate commerce other than the stipulation of counsel at the time of the interlocutory hearing which was done as an accommodation to counsel that we had purchased in excess of $50,000 worth of commodities out of the State of Georgia and had them shipped to the plant site or the construction site of this sewage disposal plant in Atlanta, Georgia.

Now counsel doesn’t tend to be tongue-in-cheek and denied that this is not interstate commerce, but the fact remains is Your Honor that the central question of commerce has never been adjudicated by any court.

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

Well, it certainly not as strong as a stipulation in the Farnsworth court — case, Mr. Justice Goldberg in which counsel stipulated that they were involved in interstate commerce in which they stipulated that there was an involvement of the National Labor Relations Act.

The only stipulation in this case is that, we stipulate that we purchased more than $50,000 worth of goods out of the State of Georgia.

I’m inclined to believe to directly answer your question that this stipulation was intended by counsel for petition to show that this is involvement of interstate commerce.

Arthur J. Goldberg:

Isn’t that the standard to which [Inaudible] —

Robert B. Langstaff:

This is a standard of the labor relations — that the National Labor Relations Board has adopted for determining this jurisdiction.

And at the time of stipulation was entered to by counsel, I had no idea of its ramification, I must admit.

But if there is a stipulation, I — it’s certainly not as strong as a stipulation in the Farnsworth case in which the whole issue before the Supreme Court of Tennessee was jurisdiction and in which the parties in that case readily agreed that interstate commerce was involved.

But I point this out to rebutt the Montgomery for this reason.

There are many things that remain to be done in the Supreme Court — in the trial court of Georgia.

I think I ought to intend to stand and deny to this Court that there are any additional facts regarding labor controversy.

Robert B. Langstaff:

I think the facts have solidified.

I think the facts have gelled and I think from the final hearing comes up that the only additional element that will be introduced to the trial court as far as this respondent here is concerned, is the question of a violation of the contract from the City of Atlanta.

We have never taken the position that the question of whether or not we violated our contract with the City of Atlanta is germane to the issues raised in our pleadings in the trial court.

We have never argued the question.

We have never introduced evidence because it’s been our position and it’s our position here that whether or not this respondent has violated its contract with the City of Atlanta, it has no bearing on the question of whether or not this petitioner has been engaged in an activity which violates the right to work statutes of the State of Georgia.

As a matter of fact that the hearing referred to by the petitioner in its brief before the Alderman of the City of Atlanta, we did at this time substantiate our opposition that we had not violated the contract.

We did introduce evidence showing that we were paying a prevailing way or at least attempting to.

And this is the only party and this was not affirmed which has really had before it the question of whether or not this contract was violated.

This is simply another reason that we point out to the Court while this — why the Montgomery case should be invoked here.

Now, the Montgomery case, oddly enough was argued almost 10 days.

Earl Warren:

Before you get to that, you haven’t yet told us what the legal effect of the — of this order under review is, that is the order of the trial court after the remittitur came down, what is the legal effect if any of that order?

Robert B. Langstaff:

I don’t’ believe I understand your question, Mr. Chief Justice.

We’re not — you’re not being asked to review the order of the trial court, but the order of the Supreme Court of Georgia.

Earl Warren:

Well, and then it came back to the trial court.

The trial court says that the decision of the Court — Supreme Court is the order of this Court, isn’t it?

Robert B. Langstaff:

Well, if — it — yes sir, so far as (Voice Overlap) —

Earl Warren:

Just take that — just take that last sentence over of this, you — as you read it and see what that says?

Take that last little paragraph.

Robert B. Langstaff:

Well, upon considering that within remittitur from the Supreme Court of Georgia.

Earl Warren:

Alright, yes.

Robert B. Langstaff:

It is ordered and adjudged that the decision of the Supreme Court of Georgia be made the judgment of this Court and the same be entered on the minutes.

Earl Warren:

Alright.

Now, what is the legal effect of that?

What is it — what does this meaning?

What does it purport to do if it doesn’t — if it doesn’t purport to grant the injunction?

Robert B. Langstaff:

Well, as I stated Your Honor under our practice in Georgia, I don’t believe it does anything other than enter the remittitur from the Supreme Court of Georgia on the trial docket and on the minutes of that court.

Byron R. White:

Well, does it mean that — does it mean that when as and if you asked for an injunction, you’re titled — entitled to it?

Robert B. Langstaff:

I cannot deny that, yes, sir.

This is very true.

I think we could go in at any time after a remittitur was entered and have gotten an affirmative order out of the Court in Georgia.

William J. Brennan, Jr.:

But the judge was not under an obligation automatically to issue the injunction without —

Robert B. Langstaff:

Not as I understand it, Your Honor.

It’s been my experience with the practice in Georgia that when a remittitur is returned, it’s an obligation of counsel to go to the Court and ask if such an order be issued.

Byron R. White:

If he wants (Inaudible) —

Robert B. Langstaff:

If he wants it, yes, sir.

[Inaudible]

Robert B. Langstaff:

Well, that’s what I was remarking to Chief Justice.

[Inaudible]

Robert B. Langstaff:

I don’t think so, no sir.

[Inaudible]

Robert B. Langstaff:

I think so, no sir.

[Inaudible]

Robert B. Langstaff:

Yes, sir.

I think that we are limited to — we’re not limited, but I think certainly one of the most important question is the Ledbetter case.

And in the time remaining, I would like to point out to this Court that it’s been almost 10 years ago to the date the Ledbetter case was recently argued in this Court in the October term of 1952.

Since that decision to my knowledge, the Ledbetter case or the Montgomery case has not been attacked in this Court at least on the ground upon which it was decided.

It still stands today as a decision of this Court interpreting the question of finality under Section 1257.

Mr. Justice Frankfurter spoke in the Wilde case as counsel referred to it yesterday, the rule in the Montgomery case goes further than some antiquated rule of procedure.

This is not some strangling rule that this Court has applied in the past to defeat the merits of the case as it come up.

This is a sale route and as it — as expressed in the Montgomery case and as expressed in the Wilde case, this is the WOW case.

The real reason behind this rule is to prevent this Court’s piecemeal interventions with state procedure before state procedure has reset the degree of finality that will give this Court’s ruling some meaning and some substance.

If the Montgomery case is overturned, the practical effect of it in labor disputes and perhaps in other disputes — in other types of disputes if this Court goes further is to make an academic blackboard out of this Court or sounding board so that when the case goes back down to final disposition in the trial court the decision of this Court might become entirely moot or unrelated for the eventual issues that come up in the trial court.

Now, I think it’s important that this Court understand one thing about counsel for petitioner in his able argument and able brief as pointed out that the practice in Fulton County in Georgia requires some 12 to 15 months for a final disposition of a case.

This is not so in the remainder state.

This Court is undoubtedly aware we do have a populous state in terms of county.

We have about 159 of them and in my part of the state, this case would be disposed of in three months when it came back on a final hearing.

The procedure differs of course due the complexity of calendars on various courts.

But I don’t think this Court should reach any decision on whether or not Montgomery should be overruled because of the facts in Fulton County.

Let’s consider the entire state.

In considering the entire state, on our practice and procedure to answer some questions that were posed earlier to counsel, when this case is returned to the trial court and I will readily concede that counsel for petitioner the minute this decree came there, came to me and asked to stipulate that a final order be entered and that the final hearing be waived.

Robert B. Langstaff:

But having been spanked once by counsel on the $50,000 stipulation I agree with great caution his request and we did not agree to this and we intended to leave the matter for final disposition at the final hearing.

The matter now stands on the trial docket in Fulton Superior Court for final hearing.

And I — as I’ve said previously, I don’t intend to disillusion the Court that the facts involving the labor dispute are gelled.

There will be no change in the facts, not that I can readily concede, but there is one important point that remains that I spoke of a moment ago and that is the question of whether or not this contract with the City of Atlanta has been violated because the respondent in this case is actively engaged in a construction work the contentions of the petitioner throughout this case have placed to sought it applied on this reputation and we intend to see at the final hearing that the evidence is introduced which will demonstrate that we weren’t in violation of our contract with the City of Atlanta.

For this reason, I didn’t no (Voice Overlap) —

Byron R. White:

[Inaudible] asked for an injunction — permanent injunction, I take it.

Robert B. Langstaff:

Sir?

Byron R. White:

You still got to press for the permanent injunction, I take it.

Robert B. Langstaff:

Well, Your Honor in all fairness, the clerk requested the counsel sometime before last week as to whether or not this job had been completed.

There’s no reason to issue on a permanent injunction.

The job has been completed.

We’ve been paid, we own it.

Hugo L. Black:

May I ask (Voice Overlap) —

Robert B. Langstaff:

We’re out of Atlanta.

There’s nothing left to be done on the job.

Hugo L. Black:

May I just ask you this question in connection with that?

Do you agree that in Fulton County, not regard with the others, it is correct wherever a temporary injunction was issued like this, that is like it could be 15 months before there can be a trial to be permanent.

Robert B. Langstaff:

Your Honor, I can’t answer that.

My — I have — just don’t have that much practice (Voice Overlap) —

Hugo L. Black:

You don’t deny —

Robert B. Langstaff:

I know Mr. Pearce and I know his reputation.

I m sure that he says, this is so, this is so.

Hugo L. Black:

Well that being the case, do you think the judgment is not as final as it could ever get that a situation is created under which in a so-called interlocutory injunction, absolutely successfully obliterates the rights of the parties to be — get the benefit of the laws as it is by reason of the fact that the temporary injunction is good until the permanent injunction comes.

Are you saying that that can’t — is not a final judgment?

Robert B. Langstaff:

Your Honor, I must return to the language of Justice Minton in the Montgomery case that the — this argument is all very sound but the fact remains is that under the previous decision of this Court and under limiting authorities of Section 1257, the reviewing power of this Court is limited to a final decree so that —

Hugo L. Black:

That’s right but what (Voice Overlap) —

Robert B. Langstaff:

— it remains to be done in this case Your Honor.

Hugo L. Black:

But the statute does not say, it never had said that a final judgment, it is not a final judgment but whatever that judgment does in effect, inevitably cuts off — and irrevocably cuts off the rights of the parties.

The statute doesn’t say that, that’s a definition of findings.

Robert B. Langstaff:

That’s correct, sir.

Hugo L. Black:

And to all intents and purposes, why is not this — why is not a judgment of this kind final where labor disputes are involved, the labor disputes are going to get over, and inevitably the Court’s order means that the labor dispute must be law because of the injunction by one party.

How can there be any logical or reasonable or sound just definition that would take that out of the word final judgment?

Robert B. Langstaff:

As Your Honor puts, and I must concede that this is a very persuasive argument as to the definition of finality.

But I call Your Honors’ attention in the instant case that there has never been such an order in it in the trial court.

Hugo L. Black:

Well, I understand that’s a different argument.

Robert B. Langstaff:

And — yes, sir, that’s correct.

But I would also point out to Mr. Justice Black that in this case alone, taking this case on its bear facts as I’ve said, there’s a various substantive point of law that must be decided back on the final hearing relating to the question of whether or not we violated this contract with the City of Atlanta.

This has never been determined.

Hugo L. Black:

But there’s a question of whether you have jurisdiction — whether the Court doesn’t have jurisdiction.

That’s the question.

Robert B. Langstaff:

Well, this is a —

Hugo L. Black:

Or whether it should be up here.

Robert B. Langstaff:

This is a separate question Your Honor.

I think that —

Hugo L. Black:

Yes, but that’s the question involved, isn’t it?

Robert B. Langstaff:

And well, I think so under the Ledbetter case.

Yes, sir.

I would — I would —

Hugo L. Black:

And may I ask you just one other question because your Georgia lawyer and you know more than your [Inaudible], if you are representing the defendants as the Georgia law in a case like this, and the Supreme Court of the State had said, “You got to issue an injunction according to this petition,” would you subject yourself to the possibility of contempt by violating the terms of the order if it’s — on the theory that it had not been issued?

Robert B. Langstaff:

Mr. Justice Black asked me a difficult question.

No, I will not Your Honor.

I don’t think I could — I’m violating my client most particularly myself jeopardize my — I’m not in that regard.

William J. Brennan, Jr.:

Mr. Langstaff, —

Robert B. Langstaff:

One —

William J. Brennan, Jr.:

— on the — if it there’s merit in this preemption point and the preemption goes to jurisdiction, what remains to be done in the Georgia courts on that issue?

Robert B. Langstaff:

You mean in this particular case, Your Honor?

William J. Brennan, Jr.:

Yes.

Robert B. Langstaff:

What remains to be done?

William J. Brennan, Jr.:

Yes.

Robert B. Langstaff:

I think Your Honor that the question and I — I’d get back to this.

Robert B. Langstaff:

I think that what remains to be done is a final hearing to decide — now, this is assuming that the plea in abatement, that the demurrers, that the answered filed by the petitioner all leads that these questions are considered moot.

I think that when this case comes up for final hearing in Fulton Superior Court, that it is the position of the respondent that we intend to clarify the question of whether or not we’ve violated our contract.

William J. Brennan, Jr.:

Well, does that go to the jury?

Robert B. Langstaff:

And I think this is important.

William J. Brennan, Jr.:

Does that go to jurisdiction?

Robert B. Langstaff:

No, sir.

William J. Brennan, Jr.:

Well, my question was addressed just to the — on the preemption jury –-

Robert B. Langstaff:

[Inaudible]

William J. Brennan, Jr.:

— the jurisdiction of the Georgia courts to do anything in the way of issuing injunctive order?

Robert B. Langstaff:

Well, of course, this gets in to what I call the second grade area of this case and that is the preemption theory.

And if Your Honor will permit me, I would like to state here our feelings about this — about preemption.

Of course, it is a contention of petitioner and I will have to agree with him on the decision of this Court that if there is a violation or put it in other way, if there’s either protected activity or if there’s a violation on either Section 7 or 8 of the Act, then these people are protected under the National Labor Relations Act and the state courts are deprived a jurisdiction.

And I think this Court has clearly held this in the Florida Hotel cases and then Farnsworth case out of Tennessee.

This is no longer an argument in issue.

William J. Brennan, Jr.:

Well, but to test is —

Robert B. Langstaff:

But the test here, Your Honor —

William J. Brennan, Jr.:

(Voice Overlap) — was not prohibited or protected, is it?

Robert B. Langstaff:

That’s correct, sir.

William J. Brennan, Jr.:

That’s it arguably prohibited or arguably permitted.

Robert B. Langstaff:

Well, I’ve seen that language and I’ve seen it on petitioner’s brief that the — this case and this Court has held that the — where the — whenever the fact showed that it’s a question for argument then the state courts are preempted.

Now, I would like to direct the Court’s attention to another provision of the National Act which disturb me, if they are not put there for a purpose and this is principally Section 14 (b) which was placed there by the 1947 Amendments.

Certainly that Congress had something in mind when they specifically stated that they will be left to the states a right to regulate working conditions in the area or the right to work statute.

Certainly that Congress meant something, when it left to the States specifically an area in which the States was still free to regulate.

If this activity or the petitioners in this particular case is not protected or not prohibited, then most assuredly, the Supreme Court of Georgia had jurisdiction under 14 (b), and the right to exercise its protected powers on the right to work statute.

Now, I think really that the critical question here is, does the record show or do the facts show that this was either protected or prohibited activity because if it does, then I think the Supreme Court of Georgia has lost its jurisdiction under these cases.

Now in the instant case, the petitioner cites to this Court and argued to the Supreme Court of Georgia that the reason for its — that the reason it was protected activity that this was an effort on its part to disseminate to the public working conditions which were repugnant to the general working conditions in the Atlanta area.

And they state that under Section 7 of the Act that this was a mutual aid or protection.

This is what they were seeking and that this conduct was protected and it is preempted.

Now, these requires an additional review of the facts in this case and let’s get back to the report I made a moment ago with the question of whether or not we violated our contract is paramount to determining whether or not the position these people take is correct or not?

Because their whole argument and their conduct is based on the fact that we violated our contract and they readily admitted in the Supreme Court of Georgia that if we had not violated our contract, this would not be protected activity.

Robert B. Langstaff:

If they would not have the right to picket and to carry signs saying that S. J. Curry & Company had violated its contract with the City of Atlanta.

So, I think it’s very important that the Court considered critically and carefully the facts as brought up on the record and the same facts that the Supreme Court of Georgia had before it.

Now, counsel has in his reply brief have stated that the counsel for the respondent has cited cases in support of its position being with the Fourteenth Amendment.

Well, this is true.

I find no cases of this Court dealing with this specific problem that we’re talking about now, the cases cited by the petitioner, the series — just for a moment, the Anheuser-Busch case and the American Tobacco Company case, the [Inaudible] case, the Garmon case, all of these cases demonstrate on their face that they were involved either with Section 7 or Section 8.

Now, this case on its facts, I believe, does not show that there’s been a violation or protective conduct under either Section 7 or 8.

The petitioner here went to City of Atlanta or first of all and went to this respondent on its jobsite and this is uncontradicted.

They went to us on our jobsite in February, this job started in January of 1961.

They came to us in a group of some 18 representatives and said, “We’d like for you to hire union people on this job.”

This was refused.

The statement being made that we operated an open shop.

Thereafter, the petitioners begin a very concerted and lengthy activity of trying to persuade the City of Atlanta that we were violating the term of our contract by not paying that prevailing wage.

Now at the initial conference on February the 14th, no mention was made of asking us to raise any wage standard at least under the affidavits of the respondent they were not and as I read the affidavits they’re not — this is not contradicted.

The statements made at the jobsite were “hire union laborer” which we refused.

Thereafter, the petitioners began as I’ve stated a concerted activity to bring the City of Atlanta to the position of where it would come to the respondent or go to the respondent and say, you are violating a contract rate wage level.

This resulted in a meeting before the city alderman.

It resulted in meetings with the city attorney and eventually the City of Atlanta and all the petitioners that there was nothing they could legally do to make the respondent raise its wage level.

Thereafter and very shortly thereafter, the respondent — the petitioner placed the picket on our jobsite with picket signs as the record will reveal stating in substance that we jave violated the terms of our contract because we were not complying with the provision that required us to pay the prevailing wage.

Thereupon and this is also undisputed, thereupon, the jobsite came to virtually a standstill.

We lost all the union employees and as a virtue — by virtue of that, nonunion employees were also put out of work and it’s on these facts that the Supreme Court of Georgia said, “This is a violation of the right to work statute”.

Now therein lies the activity of the petitioner that would be protected under the National Act.

This — it must be born in that also, a stranger picketing, there is no relationship of the employee or the employer.

There was no labor dispute.

This is simply a stranger publicity picketing.

While I recognize that this Court has said on many occasions that such picketing is protected if it’s done on the mutual aid provision of Section 7.

In this case gentlemen, the Supreme Court of Georgia in reviewing a decision finds that this conduct was inconsistent with the right to work statute and as this case said in the Vogue case and in the Graham case out of Virginia, where the Supreme Court of the State finds and makes and draws a conclusion or inference from the record that the conduct was inconsistent with the right to work statutes for that particular state, then it might rightfully — then it may rightfully enjoin that activity or conduct as being in violation.

Now, I submit as it was stated in the — in the Ballen case out of Virginia that this picketing was something more than dissemination.

If the petitioner had really been interested in disseminating to the general public as it states that it was a question of violation of contract, why didn’t it pick a medium of expression which would not have resulted in job interruption, the deprivation of work, and the interruption of delivering materials.

This job cycle is isolated from Atlanta.

They picked a method of picketing which they knew would bring economic pressure to bear upon the respondent and in compliance with the original statement made at the jobsite on February 14th the Supreme Court of Georgia concluded that this was activity calculated to violate the right to work statutes of the State.

Robert B. Langstaff:

It is our position here, it was our position to the Supreme Court that the record amply demonstrates that what this petitioner was asking was the enforcement of provisions which would violate the statutes of our state, relative – of our state, relative to the right to work and it to be gainfully employed, and to carry on an occupation (Inaudible) without interference.

It —

Arthur J. Goldberg:

Mr. Langstaff.

Robert B. Langstaff:

Yes, sir.

Arthur J. Goldberg:

Did you say a word about whether [Inaudible]?

Robert B. Langstaff:

Yes, sir.

Well, I could only fall back from the record Your Honor and state that the only evidence that this is argued — arguably permitted under the act is the petitioner’s contention that this was dissemination.

Arthur J. Goldberg:

Well, arguably prohibited.

Robert B. Langstaff:

Well, arguably prohibited.

There is —

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

There is nothing in the record, Your Honor, to show that the conduct of the petitioners here as cited in the case and they cite it in their brief was any activity that was prohibited under Sections 8 of the Act.

That is there was no attempt – there was no attempt to force a union contract here.

There was no attempt to make any move or there was no unfair labor practice involved here in the sense of Section 8.

The facts clearly show that there was no relationship between the petitioner and the respondent or between the petitioner and the respondent’s employee.

So, I don’t know how, under the facts of this case, there could be any prohibited activity as there was in the Anheuser-Busch case for instance, where the petitioner in that case was seeking the union clause contract in an already existing contract.

I don’t think that there’s any activity here, may it please Mr. Justice Goldberg, which was prohibited in the sense of the Act.

I don’t think the conduct of the petitioner comes with any — within any of the prohibitions of the Act.

More empathetically, I think that what the conduct of the petitioner does come within is Section 14 (b), that Section which leaves to the State a right to promulgate, and regulate, and administer right to work statutes of their own choosing.

And I think that the careful review of the record will show that the Supreme Court of Georgia might post and add that of course this Court is cognizant to the fact that it won’t interfere with the judgment of the Supreme Court of Georgia in interpreting its own laws unless it can be shown that there is a violation of some constitutional right of the petitioner such as the Fourteenth Amendment, I think that the fact show that the Supreme Court of Georgia analyzed this record and applied the decisions of that state in arriving at its decision that the injunction should have issued.

I think also, may it please the Court, —

Hugo L. Black:

May I ask you this in that connection before you do, does that — did the Supreme Court have to rely on findings of the fact of any kind in order to reach the conclusion that this was not before the Labor Board?

Robert B. Langstaff:

Not in the sense that I’m sure Your Honor means it.

The Supreme Court of Georgia on our practice when an interlocutory order was carried up for it to bill of exceptions by respondent had only before it the record which could then consisted only of the sworn petition, the affidavits attached to that — thereto in the counter affidavits of petitioner.

There’s no other force in the record involved so I don’t know how they could have (Voice Overlap) —

Hugo L. Black:

What I’m thinking of was your argument about the facts you say you had not breached the contract and therefore since you had not breached the contract, it was not on the case of which the Labor Board could arguably take jurisdiction?

Robert B. Langstaff:

Well, this is the point I was making, yes, Your Honor.

The point I’m making that if the trial court decides that we have not breached our contract then I don’t believe that the petitioner can substantiate its position that its conduct in dissemination of information was any protected act under the National Labor Relations Act.

Hugo L. Black:

Well, I’m not sure about the answer to the question I’m about to ask you, but assuming what you say there is a true, one of the theories of — under which –sometimes agencies are given the power to determine the facts is that on which their jurisdiction tends is that they’re the ones who have the power to determine and not the state courts.

Robert B. Langstaff:

This is true Your Honor.

Hugo L. Black:

Well now, was not that a subject where — by which facts had to be introduced which the Labor Board at the time they had basic right to determine, could the state court decide that in advance of the Labor Board’s hearing to determine whether it had jurisdiction?

Robert B. Langstaff:

Well, this Court had ruled that it cannot.

Hugo L. Black:

Or was that (Voice Overlap) determined by the Labor Board?

Robert B. Langstaff:

Sir?

Hugo L. Black:

Or was that to be determined by the Labor Board?(Voice Overlap) —

Robert B. Langstaff:

I was not determined by the Labor Board.

Your Honor —

Hugo L. Black:

(Voice Overlap) —

Robert B. Langstaff:

As I understand the decisions of this Court that this Court has held that until the question is resolved by the Labor Board, the state court does not have jurisdiction.

Hugo L. Black:

Well, then —

Robert B. Langstaff:

But that is a case where (Voice Overlap) —

Hugo L. Black:

But that’s (Voice Overlap) —

Robert B. Langstaff:

— for protected or prohibited activity and then in this case, we’re dealing with neither, it is our contention.

Hugo L. Black:

Where it depends on the finding of fact which can find those facts, the State or the Labor Board?

Robert B. Langstaff:

The Labor Board if I understand your question.

Hugo L. Black:

Well, that’s why I thought maybe that you had argued there about the contract that said that the facts were different to what they claimed different?

Robert B. Langstaff:

Well, I don’t think the question of whether or not the contract with the City of Atlanta and the respondent has been violated would ever properly be before the Labor Board, Your Honor.

Hugo L. Black:

In connection with that jurisdiction.

If you say that would take it out from under their jurisdiction.

Robert B. Langstaff:

Well, I mean in the sense that the legal determination of whether this contract has been violated has got to be done by a trial court in Georgia.

It’s the only forum that it will have jurisdiction to determine.

I’m not so sure if these people are even entitled to come in and contend that we violated the contract.

They’re not parties to this contract.

Hugo L. Black:

What if they did?

I haven’t made it clear and maybe I can’t but if the — if that is crucial to a holding of whether the Labor Board has jurisdiction respect to that contrary.

Why are they not the ones who are entitled to try that so far as this Labor Board’s jurisdiction is concerned?

Robert B. Langstaff:

I see what Your Honor means now and I did misunderstand your question.

I will have to agree that the question as it relates to my argument concerning their protected activity would be a Board determination insofar as Your Honor posed his question.

Now, we dealt with so matters outside the record.

I would mention to court that the Board’s jurisdiction was solicited in this case with Atlanta.

William J. Brennan, Jr.:

And I suppose that’s not — that’s not controlling on the issue of jurisdiction (Voice Overlap) —

Robert B. Langstaff:

No, no sir.

It is not.

William J. Brennan, Jr.:

Well, let’s see if I get this clearly Mr. Langstaff.

Are you agreeing in your colloquy with Mr. Justice Black that if the determination whether this picketing was protected activity or not, depends upon whether the contract is violated that the decision whether it was violated, is one that the Board might properly make?

Robert B. Langstaff:

No, sir.

I misunderstood Justice Black twice.

I thought that he had rephrased the question.

I state that the final determination of whether the contract between the respondent and the City of Atlanta has been violated is a matter of the state court insofar as it relates to the issues brought up under plea.

Potter Stewart:

Well may I — may I ask this.

Robert B. Langstaff:

As I understood Mr. Justice Black’s question was in order to determine whether this is protected or prohibited conduct, this is a Board matter.

Potter Stewart:

Well, let me put this way.

Robert B. Langstaff:

But I think –-

William J. Brennan, Jr.:

If in fact there was a violation of this contract, would you agree that the picketing then was protected activity?

Robert B. Langstaff:

I would not.

No, sir.

I do sir — the reason I bring up the — if you refer back to the question of violation of the contract is because petitioner says that because of the breach of contract they are entitled under the protected ambit of the Act to go out and disseminate to the general public the question or rather the fact that we have not complied with our contract.

This is the significance of this — of the argument.

I mean, they say that the language on the picket sign is true.

I say this is irrelevant whether the contract has been violated or whether the language on the picket line isn’t — I mean, the picket sign is entirely irrelevant to the issues raised on the petition in the trial court.

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

Of necessity, yes, sir, or some other facets of the Georgia’s right to work statute.

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

Insofar as the —

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

If fact was the purpose, yes, sir.

But this is also — of course this Your Honor brings me to the points of the dilemma that this is also a violation of the right to work statute and as I said previously and maybe I haven’t made myself clear or perhaps I have diverged too much from my argument as organized.

The question here, granted Your Honor, it is this and the question as I understand it has never been decided by this Court.

The Farnsworth case which is cited by counsel was clearly an involvement of interstate commerce.

The Supreme Court of Tennessee dealt specifically with jurisdiction.

Robert B. Langstaff:

The Georgia Court has not done this.

The Virginia court didn’t do it in the Graham case.

The Wisconsin court didn’t do it in the Vogue case.

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

I’m saying that this is possible Your Honor and also, I hope I’m making clear that Congress must have had some intention in putting the 14 (b) into the Act to clarify this very situation.

Now, I’m fully cognizant of the fact as this Court has ruled numerous decisions very recently that if the activity is protected or if it is prohibited, that’s it.

State court is out even if the State’s rights were also violated, but I do not believe this Court has ever said that where the state court finds that there’s been a violation of the right to work statute and there has not — and there is no finding of protected or prohibited activity that then the state court is also preempted.

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

Yes sir, it does.

Arthur J. Goldberg:

[Inaudible]

Robert B. Langstaff:

Yes, sir.

It does, its does and if Georgia — the decision of the Supreme Court of Georgia unfortunately incorporates an earlier decision and it is not too clear in this facet.

I would say that Mr. Chief Justice and may it please the Court in conclusion that our argument here is this whether it’s been made very clear that remains to be seen, but our argument here is this.

This is not a case ripe for review under the Montgomery decision.

The Court is ultimately faced with the decision of either overruling the Montgomery decision or apply it.

This is inescapable.

The decisions, that is the Montgomery decision and the Curry decision are too closely aligned on their facts.

I would only call the Court’s attention to the reasoning of this Court’s majority opinion in the Montgomery case as the sound application of the rule that went out.

I’ve tried to demonstrate due to the complexities of this case that we’re not considering, why this rule should be further enforced to prevent this Court interfering in substantive matter with a state court when their procedural matter is still indisposed off.

Secondly, I think this Court is faced with the question of determining whether or not the Supreme Court of Georgia had jurisdiction for that matter to the trial court or whether it was preempted under Section 6 or 7, or as counsel for the respondent is arguing, whether or not under Section 14 (b) of the Act, the State of Georgia was entitled to promulgate its right to work statutes and the Supreme Court of Georgia and the trial court were entitled to enforce it.

And finally, I think that if this Court found that there is no preemption, if this Court finds that under 14 (b) the State of Georgia had the right to promulgate and to administer its right to work statutes, then I think it’s faced with the decision of determining whether the record clearly shows that the Supreme Court of Georgia had merit in its decision and whether the facts there to substantiate its decision.

And it is humbly submitted that the facts are there in the record as shown by the sworn petition and the affidavits.

Thank you very much.

Earl Warren:

Mr. Pearce, I think you have a couple of minutes more.

Edwin Pearce:

I don’t care particularly to rebut but I would like to ask the Court if the Court would like to have available to it the remittitur and the trial judge order on the remittitur which we’ve been discussing.

If so —

Earl Warren:

Yes, you may — you may —

Edwin Pearce:

(Voice Overlap) — handed in to the clerk —

Earl Warren:

You may leave it with the clerk.

Edwin Pearce:

The only copy I have has some self-serving notes with — I believe I would like to copy it without those notes.

Earl Warren:

Yes, you may do that.

Edwin Pearce:

Thank you sir.

Earl Warren:

Very well and Mr. Langstaff, if you have anything you wish to add to that, you may do it.

Robert B. Langstaff:

No, sir.

I have nothing further.

I’d be glad to acquiesce with counsel that we can leave this with the clerk.

I have no objection if the Court prefer it, we’ll get a certified copy [Inaudible] —

Earl Warren:

We’ll take it as you’ve presented here as long as you agree.