LOCATION:South Carolina State House
DOCKET NO.: 87
DECIDED BY: Warren Court (1962-1965)
CITATION: 371 US 542 (1963)
ARGUED: Nov 07, 1962 / Nov 08, 1962
DECIDED: Jan 21, 1963
Audio Transcription for Oral Argument – November 07, 1962 in Local No. 438, Construction & General Laborers’ Union, AFL-CIO v. Curry
Number 87, Local Number 438, Construction and General Laborers’ Union, AFL-CIO, Petitioner versus S. J. Curry et al.
Now, Mr. Pearce you may —
John S. Patton:
If Your Honor please —
John S. Patton:
— I am John Patton, Mr. Pearce’s associate.
We were going to divide the argument.
John S. Patton:
Its alright, you go right ahead.
John S. Patton:
If Your Honor please, while we normally feel that a divided argument is not the best procedure, we felt that in this particular case, the issues divide themselves into two rather distinct issues which made it capable of divided argument.
Those issues being whether the decision from which the certiorari was prayed was a final order which permitted this Court to properly grant certiorari and also the merits the case.
It was our feeling that if it — for satisfaction to the Court that perhaps it would be better to first discuss the evidence and the merits of the case for the reason that then it would be easier having already presented that to the Court for the Court to then have presented to it this question of finality.
You may proceed in that.
John S. Patton:
Very well, Your Honor.
If Your Honor please, this case is before the Court on certiorari to the Supreme Court of Georgia, the Supreme Court of Georgia having granted an interlocutory injunction overruling the decision of the trial court which had denied the injunction.
The facts of the case are these.
The City of Atlanta, Georgia determined to build a sewage disposal plant known as the South River Sewage Disposal Plant and invited competitive bids to — of general contractors to bid on those premises.
Among those bidding was the defendant in certiorari S. J. Curry and Company what I’ll refer to as Curry.
The bid of Curry was a successful bid being the lowest bid and therefore a contract was entered into between the City of Atlanta and Curry, for Curry to construct this sewage disposal plant.
Now in that contract, there were the following words, “Wages are to conform with those being paid on similar types of work in the Atlanta area.”
The evidence was undisputed that this provision of the contract was being violated and that the wages that were being paid in this construction was substantially less than that of similar types of work in the Atlanta area.
The record shows that a conference was held in the month of February between certain labor leaders and S. J. Curry and Company and I will go into the details of that competence — conference a little further in my discussion, but a conference was held and then for the following six months, efforts were made by the plaintiff in certiorari to prevail upon the city to enforce its contract with reference to wages and to require that wages be paid in accordance with the general standard in the Atlanta area.
Now failing in that effort both in conversations with the city attorneys and various officials and also in presenting the matter to the city board of aldermen, finally as a last resort, picketing was resorted to, the picket sign reading. S. J. Curry and Company, violating contract with the City of Atlanta by not paying wages conforming with those of a similar type of work in the Atlanta area, Construction and General Laborers’ Union Number 438, AFL-CIO.
Curry filed a petition in the Superior Court of Fulton County, Georgia to bring that injunction issue restraining such picket.
This came on in due course to be heard on application for interlocutory decree at which time, Judge Farr, the Superior Court judge, denied the draft for injunction, whereupon Curry appealed the case to the Supreme Court of the State of Georgia which court overruled Judge Farr and held that injunction should issue.
The case then was carried to this Court by means of certiorari which was granted.
This Court in granting certiorari restricted the issues in this case to the question of whether certiorari should be granted in view of the case of Montgomery versus Ledbetter which dealt with the question of whether or not it was a final order in this stage.
And also, the question of whether or not the issues of this case were either protected or were — would come under the area which would come under violations of the National Labor Relations Act, in other words, whether the issues were preempted by the National Labor Relations Act.
Now, it is the position of the defendant in certiorari in his brief insofar as the merits of the cause are concerned that it is true that if the issues of this case are either protected or are violated under the provisions of the National Labor Relations Act that it is a preempted field.
John S. Patton:
On the other hand, he insists and he’s almost in time insistence is that the actions in this cause constituted a violation of the so-called right-to-work laws of the State of Georgia and that, that being true, the State of Georgia would have jurisdiction in this matter.
Now, it is our very definite insistence that the evidence does not permit of a conclusion that the state right-to-work laws have been in anyway violated.
I would like to also point out to the Court though that even aside from that which I prefer to deal with, even if they had been violated, the actions would still have fallen under the area exclusively assumed by the National Labor Relations Board, and that the issues would still be preempted.
Now in support of his position, counsel for defendant in certiorari cites the Algoma Plywood’s case of this Court, but in the Garmon case in a footnote, this Court had this remark with reference to the Algoma case.
The approach taken in that case in which the Court undertook for itself to determine the status of the disputed activity has not been valid in later decisions and is no longer a general application.
So I submit that that case has been repudiated.
Now, the other authorities which he cites are the Plumbers versus Graham, Building Service Employees versus Gazzam, Teamster versus Hanke and Teamsters versus Wohl.
None of those cases in any way involved a question of federal preemption.
All of those cases dealt only with the question of whether or not the action of the state court, deprived the party of freedom of speech within the meaning of the Fourteenth Amendment.
And it does not appear in those cases whether or not these companies were engaged in interstate commerce within the meaning of the National Labor Relations Act.
The National Labor Relations Act in its implication is not discussed in any of these cases and none of the cases that are cited by the defendant in anyway relate to the question of federal preemption, but purely to the question of the Fourteenth Amendment.
Now the only authority which I know squarely deals with this point that insofar as this Court is concerned is the case of Farnsworth & Chambers versus Electrical Workers, 353 U.S. 969.
Now, I might state that in my reply brief, the citation to the Southwestern Reporter of Tennessee Court was erroneous.
It was 229 in the brief.
It should have been 299 Southwestern Second 8, 299 Southwestern Second page 8.
Now the State Supreme Court in that case stated this, this is the Supreme Court of the State of Tennessee.
The demurrers filed to the original and supplemental bill, raised one issue, and that is whether the courts of Tennessee have the power to enforce the right-to-work law or whether it was the intention of Congress in the enactment of the Labor Management Act to so exclusively preemptive field of labor management relations in interstate commerce as to remove the matter from the jurisdiction of the state courts.
Now, in reference to the facts, the State Supreme Court said this.
It seems that before this, a representative of the Labor Union approached the management of complainant and protested that complainant was not employing union labor and threatened to picket the plant if union laborers were not employed.
Complainant refused to employ union labor and picketing resulted.
The state courts held that it had jurisdiction in this cause because of the state right-to-work laws.
This Court in a per curiam opinion, held as follows.
The petition for writ certiorari is granted and the judgment of the Supreme Court of Tennessee is reversed, Weber versus Anheuser-Busch and Garner versus Teamsters.
Now, if Your Honor please, if Your Honors will of course recognize those two as landmark decisions dealing with the subject of federal preemption.
Now, I would like to further point out to the Court insofar as the alleged right-to-work law is concerned that even if there was an area in which the state can act therein that the decision of where that area would lie would be for the National Labor Relations Board to determine as to whether they had jurisdiction or whether it was a matter concerning which the state could lie because it fell beyond that jurisdiction.
This Court has definitely held that if a matter is even argued within the jurisdiction of the National Labor Relations Board that then the National Labor Relations Board is a proper forum to go to, to make the determination as to whether or not it is a National Labor Relations Board matter.
Otherwise, we would have a conflict that this Court discussed in the Garner case with the state court holding one way and the Labor Board holding another.
Now in the case of San Diego Building Trades Council versus Garner, this Court said this, “At times, it is not been clear whether the particular activity regulated by the states was governed by Section 7 or Section 8 or was perhaps outside both these sections,” but courts are not primary tribunals to adjudicate such issue.
It is essential to the administration of the act that these determinations be left in the first instance to the National Labor Relations Board.
What is outside the scope of this Court’s authority cannot remain with any state’s power and state jurisdiction too must yield to the exclusive primary competence of the Board.
John S. Patton:
Now, if Your Honor please, over and above and the side from that issue which I think is sound in itself and determinative of the facts of the matter, I wish to respectfully submit that not only does the problem as to a question of arguability but there is no reasonable basis in the evidence for a finding that the state right-to-work laws have been violated.
Of course, the Supreme Court of the State of Georgia merely saying that they have been violated would not confer jurisdiction unless the evidence established the fact that they were violated even if that would give the state court jurisdiction.
This Court in the case of Plumbers and Steamfitters versus Graham said in that connection.
In a case of this kind, we are justified in searching the record to determine whether the critical findings of the state courts had a reasonable basis in the evidence.
Now, if Your Honors please, the contention that the right-to-work laws had been violated which is made by my opponent, is based upon a conference which was held on February the 14th, 1961 at which certain labor leaders appeared and also the Secretary of the Building Trades Council was present.
It does not affirmatively appear in the transcript whether anyone was appearing on behalf of the plaintiff in certiorari.
However, possibly, it may be inferred that they were and even if it so inferred, I do not think it — in any way would change the situation.
It is alleged that at that meeting, a statement was made that the company must have union labor and that they would see that it was done to some such statement.
However, if Your Honors please, nothing was ever done to implement such a statement.
They — no picketing resulted bothering that conference and the picketing out of which this case arose did not result until a good six months later on August the 10th, 1961.
Now during the intervening months, this is what happened.
The union discovered — the union was aware of the fact, made aware of the fact that the wages were not being paid as required by the city’s contract and that therefore the wages in the area were being depressed as a result of this failure to abide by the contract.
Therefore, the matter was taken up with the City of Atlanta and numerous conferences were held with the city attorney and other officials of the City of Atlanta, in an effort to get the City of Atlanta to enforce its contract and require that the wage scale should be raised to conform to the contract.
And the evidence is undisputed that these conferences were held that this is what transpired and the evidence is undisputed that it was affirmatively stated to the city that they were not concerning themselves in anyway with who worked on the job.
But that they were concerning themselves only with the question of wages.
Certainly, that would be a complete repudiation of any idea that they weren’t any way seeking a violation of the state right-to-work laws.
After months of such conferences without avail, as a last resort, the matter was carried to the City Board of Alderman, the final authority so far as the city was concerned and after a full hearing there, this was the minutes of the Board of Alderman.
After lengthy discussion, this matter was referred to executive session where the committee agreed that there is nothing that the city legally can do so as to make Curry raise his pay scale.
Not one word as to who was employed, not one intimation in the record that any request was made of the City Board of Alderman, the city attorney or anyone else in these conferences having anything to do with employment, but only the wage scale.
Now the union showed the patience of Job in this matter.
They resorted every possible means of getting the city to maintain the wage scale by enforcing its contract and it was only after carrying it to the highest authority in the city, all else having failed, and being turned down by the Board of Alderman that they resorted to the only remaining recourse which was to advertise to the people on the job who were being paid less than they were entitled to under the contract by means of picket signs what was going on and to present to the public the fact by their city officials who are not imposing a contract which had been enacted for the benefit of labor in this particular case.
Therefore, they did erect this picket sign saying S. J. Curry and Company is violating contract with City of Atlanta by not paying wages conforming with those of a similar type of work in the Atlanta area.
Now, if Your Honor please, the Supreme Court of the State of Georgia intimates to a certain extent that they have jurisdiction because it is a strange picketing.
I do not think that they expressly say so but they discussed the fact that no one was working — who was working on the job was engaged in the picketing.
Now, if Your Honors please, that would in no way confer jurisdiction upon the state court.
Certainly, it is a protected right under Section 7 of the National Labor Relations Act.
It is concerted activity and for this reason, the evidence clearly establishes for that contradiction and I think the Court could take judicial notice of fact if it did not so establish that these jobs in the construction industry are given on competitive bids.
The result is the one that makes the lowest bid gets the job.
The company that’s undercutting the standards and is destroying the wage structure and the standard of living is enabled there by to make the lowest bid and if otherwise competent will get the job.
Then that puts the question before the others who are paying the staff and upholding the wages within the area have two choices, either they continue to pay the standard, lose the bids and as a result of that are forced into bankruptcy or else they reduce the wages to the place where they can meet the competition and having so reduced them, then they can bid on an equal footing with the current.
John S. Patton:
Now, the result of this cycle is that all of the hard one — efforts to raise the standard of living in the Atlanta, Georgia area are completely undermined and completely destroyed.
And these people are fighting for self-preservation.
They are fighting to maintain the wage area standards within the Atlanta area.
Now this Court has held in a number of cases involving so-called stranger picketing that it is not the matter for the state courts to concern themselves with.
For example, in the case of Hotel Employees versus Sax who had a case of organizational picketing, the case of San Diego Building Trades versus Garmon was one way the union sought to compel the company to execute a union shop-contract when they did not represent the employees and thereby to force the employees into the union.
The case of Garner versus Teamsters, the union was picketing for the purpose of inducing employees to join the union.
Meat Cutters versus Fairlawn Meats was an attempt for the union not representing the majority of employees to compel an employee or to force its employees into the union.
And then the very recent case of Waxman versus Commonwealth of Virginia, this Court held that any stranger picketing situation that the State of Virginia would not be permitted to act, but it was a purely and completely preempted field.
Now I respectfully submit, if Your Honors please, that this — that the union has not violated any law, state or federal, and is exercising a privilege which is vital and important to the labor movement.
But if a law had been violated, it would have been Section 8 (b) (2) and 8 (b) (7) of the National Labor Relations Act if it was an attempt to en — to force employees into the union as is apparently contended by the opposition.
And in that event also, it would be clearly preempted and the case has been carried to the wrong forum.
So I’m —
Well, on mass picketing, there’s violence in this proceeding at all?
John S. Patton:
If Your Honor please, the Supreme Court of the State of Georgia expressly held that the picketing was entirely peaceful and there is no evidence whatsoever any violence or any need of exercise of the police power.
If Your Honors please, I will now turn it over to Mr. Pearce and he will discuss the other part.
Mr. Chief Justice Warren and members of the Court.
We thought that the aspect of this case regarding finality was sufficiently separate where it could be appropriately discussed separately.
I should like to state the general basis on which we are approaching this matter.
One is the area whereby the Court has increasingly begun to look at the practical or the substantial meaning of finality rather than the purely technical meaning and then secondly, which is a part of this, to what extent does the fact that the question arising is the unlawful exercise of jurisdiction in a federally preempted area which results on a substantial denial of a federally derived and federally protected area, to what extent does that enter in to the practical consideration of the approach to what is meant by found?
William J. Brennan, Jr.:
[Inaudible] can you tell me, are you going to ask us to overrule Ledbetter?
I will try to make a double play, if you please.
I will suggest that Ledbetter should be overruled or also give this Court reasons why this case is not —
William J. Brennan, Jr.:
Could govern that?
— necessarily follow it.
It would have to follow that (Inaudible).
Could I ask you (Inaudible) —
Yes, Mr. Justice Harlan.
— your argument [Inaudible] in your briefs on it with the question of whether there’s power of this Court to do something under the extraordinary writ statute?
I had not intended to discuss it.
I am apparently interested in (Voice Overlap) —
I wonder if you will consider that overnight because to me that is a question that I’d like here argued.
To be sure, I understand that you would mean the power of — for example the Federal District Court.
Assuming that there’s no finality here whether in the interest to protection — protecting ultimate jurisdiction of this Court in these circumstances, there would be power to issue the writ, and in connection with that take into account the limitations, federal limitations on the power of federal courts to restrain state court action.
Alright, I will be glad to do that and I appreciate the opportunity.
Let me say at the outset the duty as one case that, I am apologetic, did not get in our brief and should certainly be considered by this Court.
I’m going to mention it and it’s a case of Pope against Atlantic Coast Line.
William J. Brennan, Jr.:
May I have that again [Inaudible]
Pope, P-O-P-E versus Atlantic — versus Atlantic Coast Line.
The citation is 345 U.S. 379.
Arthur J. Goldberg:
The citation, Mr. Justice Goldberg, 345 U.S. 379.
That is certainly a case that ought to be considered in connection with this discussion.
Now the departure of this Court from a purely technical approach to the meaning of finality started a long time ago.
I think perhaps in the time of Mr. Justices Taney.
At least a great – it appeared somewhat remote from the labor area that we had been in the last 10 to 12 years.
The Court has decided that it is not bound by technical matters such is — such as, is there anything else to do in the state court.
The first departure from that I believe is just a matter of interest to when the only thing to be done in the state court was purely ministerial, but the departure has — I think before this, the present personnel of the Court came upon the bench that already reached a more pronounced departure than that.
The Court has determined and I think it must determine and must continue to determine otherwise we have a completely dominant technical rule that would not be workable that this Court will look at the substance to see if the decision you’re being asked to review has finally been passed upon by a court of last resort of the state.
In other words, has the highest court of the state had to point, have they decided it and with finality as far as they are concerned and then is it right for presentation here.
A number of elements should have been injected into this formula by the Court in the development of this.
I will only go back in just a very few cases I have to mention approximately — well back to 1947 when the labor cases first began to get into the picture.
And the case that I — we have in the brief, the Myers case is not exactly is a case where the federal court is deciding whether it will review an order of the Circuit Court of Appeals which is not quite the same, I realize as reviewing the state court and I mentioned it only because some observations by Mr. Justice Brandeis began to introduce some elements of practicality into this rule that we have later developed.
There, the question was whether or not the United States District Court could enjoin the National Labor Relations Board for processing an unfair labor practice case against an employer.
And there were split of circuits and this Court took it, but this Court was taking a review of a preliminary injunction which it was operating under different statutes.
I don’t see it’s binding as precedent but I simply say that this is the first time that a review of a preliminary injunction was sought before this Court on the basis that it should be done to protect jurisdiction where there is conflict of rights and jurisdiction under the proce — under the federal system.
Mr. Justice Brandeis said, “That rule of practice, referring to the rule of practice that you will not review anything that is repugnant has no application whereas here” there was an insuperable objection to the maintenance of the suit in point of jurisdiction.
In other words, if a court is proceeding without jurisdiction of the subject matter to handle anyhow and thus deny rights that is final enough to where it is properly brought to this Court, we should, says this Court, “We should take cognizance of.”
Arthur J. Goldberg:
That is a case of Myers against Bethlehem —
William J. Brennan, Jr.:
Oh yes (Voice Overlap) —
— Shipbuilding Corporation in the citation 303, 41.
I think this is perhaps one of the less important of the cases I have in that we’re talking about reviewing federal courts rather than state courts.
But very shortly after that, we have the case of Station WOW versus Johnson which we’ve been calling back home the WOW case.
It’s derived from Woodmen of the World and we’ve got that designation because when our lawyer found it, he said, Wow!
I found a case.”
Now we’ve called it the WOW case.
It’s a case in which this Court reviewed a judgment of the Supreme Court of the State, I believe of Nebraska where that court had reversed the trial court and sent the case back, requiring the trial court to order that certain property be delivered back from a lessee to a lessor and that an accounting be held.
Now this Court, facing the question of finality said, “Yes, there is something else to be done in this case.
There is not only the order of the property be delivered back but there’s going to be in the state court an accounting of moneys during the period of the lease that was being invalidated.”
But this Court said two things, one is, it’s important because they’ll have to give the property back immediately and that’s an irreparable injury.
And so they — this Court at that point introduced into the picture the question of irreparable injury that is something that if you don’t give the relief now, it won’t be any good later and of course that’s — such a case like the glove is.
Arthur J. Goldberg:
Mr. Pearce, as far on the [Inaudible] to the question of whether the law authority [Inaudible] the contention that you relied [Inaudible]?
Yes sir, I would.
We’ll recess now Mr. Pearce.