Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America v. Jewel Tea Co.

PETITIONER:Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America
LOCATION:United States District Court for the Eastern District of Louisiana

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 381 US 676 (1965)
ARGUED: Jan 27, 1965 / Jan 28, 1965
DECIDED: Jun 07, 1965

Archibald Cox – Solicitor General, Department of Justice, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal
Bernard Dunau – for the petitioners
George B. Christensen – for the respondent

Facts of the case


  • Oral Argument – January 28, 1965
  • Audio Transcription for Oral Argument – January 28, 1965 in Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America v. Jewel Tea Co.

    Audio Transcription for Oral Argument – January 27, 1965 in Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America v. Jewel Tea Co.

    Earl Warren:

    Number 240, Local Union Number 189, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, et al. versus Jewel Tea Company, Incorporated.

    Bernard Dunau:

    May it please the Court.

    In the Chicago area, the employment terms of butchers and meat departments, all governed by collective bargaining agreements entered into between meat cutters locals and the food store operators.

    Central to the question in this case is a provision in those agreements which read like this.

    Market operating hours shall be 9 A.M. to 6 P.M. Monday through Saturday inclusive.

    No customer shall be served who comes into the market before or after the hours set forth above.

    It is said that this agreement is a contract in restraint of trade and violation of Section 1 of the Sherman Act.

    On the merits of this claim, there are two ways into this problem, one, through the National Labor Relations Act.

    In our view, based upon the findings and the record, the limitation upon marketing operating hours is with respect to wages, hours, and other terms and conditions of employment.

    It is a mandatory bargaining subject.

    And it is our position that an agreement upon a mandatory bargaining subject is not within the coverage of the Sherman Act.

    An agreement with respect to wages, hours and other terms and conditions of employment is not an agreement in restraint of trade.

    If we first establish and we have to establish by a record showing what this agreement is about, if we first establish that it is mandatory bargaining subject, then it is our position that under no circumstances does it come within the Sherman Act.

    When one says it’s being used as a façade, I think you will go to a question as to whether or not it is a mandatory bargaining subject.

    I think that might be relevant to the ascertainment whether the agreement is with respect to wages, hours or other terms and conditions of employment or is in restraint of trade.

    But it seems to us that once you establish that it is upon a mandatory bargaining subject, then nothing else is relevant.

    In our case here in Jewel, it happens that the same evidence which establishes that it’s a mandatory bargaining subject also establishes that it is within the labor exemption if you look at this case via the Norris-La Guardia Act and Clayton Act exemptions in the Sherman Act.

    Arthur J. Goldberg:

    These that you refer to are part of the present case, suppose (Inaudible).

    Bernard Dunau:

    Then on those facts it would be — he would not be negotiating a matter with respect to wages, hours and working conditions.

    He would be negotiating a provision designed to regulate trading hours as such as to that kind of a provision whether it’s within a — prohibited or not by the Sherman Act seems to us to be governed by the rule of reason like any other agreement between businessmen in the heart– in the instance that Your Honor has posed, it seems to us we are concerned with whether this business agent is in fact acting as an entrepreneur.

    If he is, then there is no Sherman — labor exemption at issue at all.

    If he is acting as an entrepreneur or if a union is acting as an entrepreneur in that capacity it does not come with any Sherman Act immunity.

    It’s like any other businessman.

    It seems —

    Byron R. White:

    You suggest that a — that a group of employers who none of whom is organized, does not make an agreement saying that he will look our employees no more than six hours a day and none of us will sell any meat after 6 P.M.

    Bernard Dunau:

    If their agreement is about wages, let me take the illustration they — or about hours.

    They don’t want to work —

    Byron R. White:

    I just gave you — I just gave you what the agreement was.

    Bernard Dunau:

    They don’t want to work their men longer than six hours, that is hours of employment.

    Employers are allowed to combine with respect to that subject.

    Bernard Dunau:

    It is not an agreement with respect, in restraint of trade.

    Now, it seems to me that difference between a hypothetical that Your Honor suggests and the one that Mr. Justice Goldberg suggests is precisely the difference between the subjects of the agreement.

    The subjects in Your Honors hypothetical, as I understand it pertained to wages, hours, and working conditions and employers can combine on those subjects.

    Byron R. White:

    Those — but if they just came to one another and said we will — none of us will somebody meat after six o’clock.

    Bernard Dunau:

    Then, on those bare facts, you wouldn’t know what they were doing.

    You have to have further facts in order to understand whether you are dealing with a wage hour and working condition question or whether you are dealing with a restraint of trade question.

    You simply could not answer it on those bare facts.

    Byron R. White:

    But if — but if — but if — but if a labor union agreed with the law of the employer unit that the employer unit — no member of the employer unit will sell meat after six o’clock that —

    Bernard Dunau:

    Because then —

    Byron R. White:

    Because the unions there, is that the extra fact?

    Bernard Dunau:

    Because then we get into the labor exemption, Your Honor.

    In this case, the second way into the case is via the labor exemption.

    We can assume in this case that the market operating hours provision is a restraint of trade.

    It’s an undue restriction on commercial competition.

    You still cannot reach it if as this finding shows it was entered in by the union in itself interest free of abetment of a businessman’s conspiracy.

    On those facts, it would make no difference whether you were dealing with a restraint of trade or whether you’re dealing with the wage hour and working condition.

    And that is why on our view of our case, we have two strings to our bow; one, we are dealing with wages, hours, and working conditions under the National Labor Relations Act and therefore we are out of the Sherman Act all together.

    Potter Stewart:

    Of course on that one, there is a fundamental dispute between the two parties this controversy your — whether on the other side says there’s a disclosing hour, it has nothing whatever to do with the hours or working conditions of the butchers.

    Bernard Dunau:

    That was a great dispute in the District Court.

    Potter Stewart:

    Well, it continues here as I read the brief.

    Bernard Dunau:

    As you read the briefs, Your Honor, but so long as the District Court found the facts as they found them and those findings were undisturbed in the Court of Appeals, Jewel can argue all at once that the facts should be read differently.

    They come here armored not only by the clearly erroneous rule they come armored by the two court rule.

    If Jewel wants to argue in this Court that the fact should have been found differently by the District Court, it is welcome to that burden.

    We take the findings as the District Court made them undisturbed by the Court of Appeals.

    Potter Stewart:

    Now, which findings said that?

    Bernard Dunau:

    May I before — I will come to that in just one moment but this does raise the third question in this case.

    We say it’s wages hours, and working conditions.

    Jewel says it’s a restraint of trade.

    We think that means that this question should have first been before the National Labor Relations Board as the body which the Congress has set off to decide whether a subject is or is not a mandatory bargaining subject.

    We think, therefore, that this complaint had no business in the District Court without prior recourse of the National Labor Relations Board.

    Bernard Dunau:

    But now as to the finding of fact, I want to read to the Court the ultimate finding of fact of the District Court.

    That this appears on page 672 just above the — probably on number 198.

    We have in this case two volumes of record and we’re talking about Volume I pertaining to the testimony and the exhibits.

    The union’s insistence on the retention of the marketing hour restriction was based upon its desire to protect its right not to work at night and to protect its work from being taken by others.

    Those facts and circumstances are inimical to plaintiff’s theory that the unions insisted on the restriction as the tool of the employer group and at their behest.

    On the contrary, the evidence establish that the restriction was imposed after arms length bargaining including an overwhelming strike vote against night work, and was fashioned exclusively by the unions to serve their own interests, how long and what hours members shall work, what work they shall do, and what pay they shall receive.

    These are not objects which the antitrust laws prescribed.

    They are conditions of employment and as such are clearly within the labor exemption of the Sherman Act.

    This is the ultimate finding effect in our view.

    This finding having been undisturbed is dispositive of the claim that the unions on any theory have violated the antitrust laws.

    Now, what went into this finding of fact?

    Potter Stewart:

    That — that recital in the District Court’s memorandum as it goes to the motivation of the union and I suppose when it talks about the union not working and either the employees —

    Bernard Dunau:

    (Voice Overlap) men.

    Yes sir.

    Potter Stewart:

    But if the fact is that this early closing hour or not has in fact no impact at all on the hours which these butchers worked would the original motivation be controlling or would the — would the element of the fact be controlling?

    Bernard Dunau:

    Well, the finding and the suppositious case are simply irreconcilable.

    When the District Court —

    Potter Stewart:

    I mean as I understand in the — but obviously before the days of any self service in order for a meat market to be open, there had to be a butcher there.

    And in the early days of self service, this was possibly also true as I understand that the claim release is made nowadays with the improved technology of self service in the supermarket it’s not, as a matter of fact, necessary to have a butcher present in order to have a meat market open, a self service market open.

    Bernard Dunau:

    As a matter of fact this issue was hardly — hard — litigated hard in the District Court because Jewel says it’s a fact that you can operate a self service meat department without employees and we say nonsense you cannot operate a meat department service or self service without employees.

    And the finding of the District Court on that issue was in our favor.

    On page 672 of the record, talking about the same page, talking about the ostensible possibility of operating a self service meat department without employees.

    It meant this proposal that their work would be done with others unskilled in the trade since the evidence showed that in stores where meat is sold at night, it is impractical to operate without either butchers or other employees.

    Someone must arrange, replenish, and clean the counters and supply customer services.

    And then the District Court repeated that finding on page 675.

    Even in self service markets, meat — oh that is — night meat sales even in self service markets require as a matter of practical operation, the services of either butchers or other employees.

    Potter Stewart:

    Your evidence of —

    Byron R. White:

    The findings in other butchers and other employees are different but neither one of the two works.

    Bernard Dunau:

    Yes sir, and that got back to the fundamental position of the District Court and our fundamental position.

    Our object is twofold.

    Bernard Dunau:

    One, not to work at night and two, not to have our work be performed by anybody else, and that the marketing hour restriction was necessary to be sure that both were accomplished.

    It was no good not to work at night but to find that the retail clerks or the supervisors were doing our work.

    Byron R. White:

    Based upon the assumption that this kind of work, the arranging of meat and replenishing the stock is butcher’s work.

    Bernard Dunau:

    It is butcher’s work.

    There is a finding specifically on that subject.

    Potter Stewart:

    And that is covered by the agreement too?

    Bernard Dunau:

    It’s covered in terms by the agreement and we covered it by testimony undisputed.

    And there is a finding of facts specifically that cleaning the counters, rearranging the stock, replenishing the stock is butcher’s work.

    So when we are talking about loss of work to others, we are talking about that work which under the agreement is done by the employees we represent.

    Potter Stewart:

    Right, and so if Jewel did do this as you say here, they’d be violating their collective bargaining agreement?

    Bernard Dunau:

    Yes sir, they would be.

    Potter Stewart:

    And you’d have a perfectly good remedy against them.

    Bernard Dunau:

    And we would not have a perfectly good remedy against them Your Honor because we know that you cannot police these things.

    We know from the exception that is contained to the limitation of market operating hours, it pertains to fresh meat.

    Other meat department products may be sold after 6 P.M.

    And the agreement is that these other products will be stocked in the cases before 6 P.M. and will not be handled by any employees after 6 P.M.

    We know and the finding is that in fact invariably after 6 P.M. that meat is being restocked and those counters are being cleaned either by the manager, the assistant manager, or the grocery clerks.

    We had an instance of cheating in the very course of trial which we brought, induce evidence on and there are findings here that the — one of the reasons the union fears self service operation extensively without employees that in fact employers cheat on the promise that they will not have — that no one will do this work but butchers.

    Potter Stewart:

    There was the evidence by operations over in Indiana.

    Bernard Dunau:

    Yes sir.

    William J. Brennan, Jr.:

    Does that show cheating as you call it?

    Bernard Dunau:

    That is — the evidence in Indiana is the evidence of cheating we uncovered here.

    On either Tuesday or Wednesday night, when they were supposed to be operating this meat department without employees, one of our people went into that store.

    There were two grocery clerks in the cooling room of the meat department.

    Our witness asked for a runt roast and the grocery clerks brought out two to ask him to make a selection.

    This is cheating.

    This is what happens in Indiana where supposedly you operate a meat department at night without employees.

    But furthermore, taking Indiana on Jewels’ own representation, the record shows as clearly as anything can be shown that even in little Hammond, Gary area in Indiana which is what we are talking about, you always have a meat cutter on duty at least Thursday and Friday.

    You may have a meat cutter on duty other nights of the week depending on the volume of business.

    And the only time you do not have a meat cutter on duty is when business is light.

    Bernard Dunau:

    So when business is brisk and the only time therefore that night operation makes any difference, you always have a meat cutter.

    Now, this is what Jewel’s chief negotiator said in his deposition which he did not disclaim at the trial about the so-called operation in Indiana.

    He said in Lake County, Indiana, we are required to have a meat cutter on duty only on Thursdays and Fridays.

    We are usually open five nights a week.

    We usually have a meat cutter on duty Mondays and Tuesdays in addition to Thursdays and Fridays.

    Wednesday is a pretty light night and some of our markets will not have a meat cutter on duty on those nights.

    This was the information known to Jewels’ chief negotiator.

    This was obviously the information on which he was acting when he was negotiating with the unions.

    And it is simply fictitious to assume that either Jewel’s negotiators or anybody else were negotiating the subject of market operating hours on the artificial assumption that you could in truth operate a self service meat department without employees.

    In fact, that proposal and the only proposal that was ever made to that effect were made by Jewel in 1961 in the last minute of contract negotiations when the negotiations were breaking up.

    A serious proposal is not made in the last moment when negotiations were breaking up.

    No other proposal of that kind was made in 1957, 1959 or 1961.

    What we have here, therefore, is a question as to whether the man must work at night and whether their work will be taken over by others.

    Now, this goes back a long time.

    This goes back to November 1919 more than 45 years ago.

    In 1919, the meat departments in Chicago were operated 81 hours a week, seven days a week.

    The meat departments were operated from seven in the morning to seven at night, Monday through Friday.

    They were operated from seven in the morning to 10 at night on Saturday but they were operated from seven in the morning to one in the afternoon on Sunday.

    In November 1919, the union called a strike that was Local 546 which is now the biggest local and was then, I believe, the only local.

    They called a strike and the object of the strike was expressed in four words; more money, less hours.

    And what they wanted on less hours was one hour off in the morning, one hour off at night, and no Sunday hours.

    That strike lasted for eight days.

    They want it.

    At the end of the strike, marketing and working hours were in Chicago placed at 8 A.M. to 7 P.M.

    Monday through Saturday — oh that is 8 A.M. to 7 P.M. Monday through Friday, 8 A.M. to 9 P.M. on Saturday and no Sunday hours.

    Year 1920 was the year at least so far as we were able to uncover files.

    This far back was the first written contract we could find.

    What was written in 1920 in the collective bargaining agreement pertaining to meat cutters in the Chicago area remains the kind of agreement we have now with the only difference being the hours which are presently limited.

    In 1920, this was the agreement, nine hours shall constitute the basic working day.

    Hours shall be 8 A.M. to 6 P.M. except in Saturdays and days preceding holidays beginning at 8 A.M. and quitting at 9 P.M.

    Bernard Dunau:

    It is expressly understood that no customers will be served to come into the market after 6 P.M. and 9 P.M. on Saturdays and on days preceding the holiday.

    The first written agreement combine marketing hours and working hours that combination exists in every agreement in the Chicago area through the one that exists today.

    In 1937, the hours on Saturday were reduced from 9 P.M. to 7 P.M.

    In 1941, the hours on Saturday were reduced to 6 P.M.

    In 1945, they were reduced on Saturday to 3 P.M.

    In 1946, to 1 P.M.

    In 1947, the short day on Saturday was discontinued.

    It went back to 6 o’clock.

    It’s been that way ever since.

    The agreements are explicit marketing hours and working hours stops at 6 o’clock.

    And the reason they stop at 6 o’clock, and the reason they were regulated in 1919 as a result of the strike is because the men do not want to work at night.

    Potter Stewart:

    Of course, back in 1919 and indeed up until the advent of self service, as it’s called, it was implicit in the economic — in the facts of the situation that marketing hours and working hours were coterminous.

    As I understand it now, there is some provision in the agreement for working hours after 6 P.M. so long as the work is carried on behind locked doors.

    Bernard Dunau:

    Yes sir, and this was in the agreement in 1920.

    In the agreement in 1920, it said this, overtime to be limited to one hour everyday and shall be performed behind locked doors at the rate of $1.50 per hour.

    Behind locked doors, meaning the market shall be closed was one of the safeguards which was in this agreement from the very beginning.

    Earl Warren:


    Bernard Dunau:

    Yes sir.

    Earl Warren:


    Bernard Dunau:

    No sir, I do not think that —

    Earl Warren:


    Bernard Dunau:

    No sir.

    We read the findings, this is on 18A Your Honor.

    Earl Warren:


    Bernard Dunau:


    Earl Warren:


    Bernard Dunau:

    This 19A, Your Honor, is the first opinion on the interlocutory appeal prior to the trial.

    Earl Warren:


    Bernard Dunau:

    They did say something upon which the Jewel relies to say that the Court of Appeals swept aside all the findings.

    And this is what the Court of Appeals said.

    Bernard Dunau:

    This is at page 692 of the record, 692 to 693.

    That is the — in the petition for the writ it would be — it would be on page 5A of the petition for the writ.

    It says, “The evidence admitted by the District Court on remand is in the record now before us.

    There are no factual disputes revealed by the evidence, no question as to the credibility of any witness on any issue which we consider has been raised — which we consider relevant has been raised.

    It sustains the material allegations of the complaint.

    It’s the single line which Jewel picks out to show that all the findings of fact of the District Court evidence have been swept aside.

    We say that the key to that sentence is the word material allegations of the complaint.

    The Court of Appeals did not disturb a single finding.

    It rendered them irrelevant by its view of the law.”

    Earl Warren:

    What part is it?

    Bernard Dunau:

    Which part —

    Earl Warren:


    Bernard Dunau:

    Effectuated on unreasonable restraint of trade.

    That goes to another subject, Your Honor.

    That goes to a question upon which the writ was denied.

    The question which we present on which the writ was denied namely whether assuming these were an agreement exclusively between businessmen, it would be an unreasonable restraint of trade.

    That does not go to the findings with which we are concerned.

    And in our view, what the Court of Appeals did was to undercut the findings by its view of the law not to disturb what the findings were.

    They did two things.

    One, they said, it doesn’t matter that you are interested in not working at night.

    The time that a store shall be opened is to be determined by the merchant.

    You will work those hours so long as those are the hours that the merchant wants to keep the store open.

    That was the way it got rid of all the labor attributes of the limitation.

    And that got rid of the finding that there was no conspiracy by saying it doesn’t matter that there’s no conspiracy.

    It’s enough that there is an agreement which was entered into as a result of joint negotiations.