Los Angeles Meat & Provision Drivers Union v. United States

PETITIONER:Los Angeles Meat & Provision Drivers Union
RESPONDENT:United States
LOCATION:Clauson’s Inn

DOCKET NO.: 38
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 371 US 94 (1962)
ARGUED: Oct 10, 1962
DECIDED: Nov 19, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – October 10, 1962 in Los Angeles Meat & Provision Drivers Union v. United States

Earl Warren:

Number 38, Los Angeles Meat and Provision Drivers Union, Appellants, versus United States.

Mr. Hackler.

Charles K. Hackler:

Mr. Chief Justice, members of the Court.

This case is a case of first impression in an Appellate Court, involving the question of whether under the antitrust laws of the United States, a District Court is empowered upon a finding of violation of the antitrust laws by a trade union, and frame a remedy which in addition to the usual prohibitory injunctive provisions applicable to the particular restraints of trade shown goes beyond that and includes the following three orders directed to the trade union.

First, that it expel from its membership all of a certain class of members.

Second, that it be perpetually enjoined from ever taking that class of workmen into membership in the future.

Thirdly, that if any present member of the union should become a member of that class by virtue of his manner of work that he should thereupon summarily be expelled from the union.

These three express provisions were included in the decree below by the subject of a direct appeal from a single judge decision here as the sole issue before the Court.

The matter is of importance obviously and of novelty because so far as I have been able to determine, during the more than 70 years since the passage of the original antitrust law, the Sherman Act was not until 1960 in a case arising in the Southern District of New York that this kind of a remedy not quite as drastic as this but in the same vain namely the forced of expulsion of union members was ordered by District Court.

I am not aware in the Government, although quite diligent in digging up forms of decrees, has not cited one whether has ever been a consent decree.

Tom C. Clark:

But it does [Inaudible]

Charles K. Hackler:

Yes, Your Honor.

That is the referred to in all of our briefs here.

It’s the Smokehouse case and referred to by the decision below here.

This case arose by a civil complaint being filed against a Local Union of some 2400 members whose headquarters is in Los Angeles, California.

These members for the most part are engaged in truck driving and loading and unloading of trucks and incidental work in the meat and provision in allied industries in that city.

In addition to the union, it was made a defendant one of its business agents and four of its members who were self-employed meat peddlers.

The case went to the Court upon a comprehensive stipulation of fact, no evidence was taken, some 74 separate items of facts in great detail were stipulated between counsel and upon a stipulation on the part of all of the defendants that the Court, that they had violated the antitrust laws in the respects shown, a further stipulation that the Court could enter an order that such violations have taken place and also a decree enjoining each and every type of violation with leaving only for the Court’s decision whether, in addition to that ordinary unusual remedy, there should in addition the expulsion remedies that I just described and which had been a part of the prayer of the Government.

Apparently following the Fish Smokers case in 1960, it has become in this type of case, that is a case involving so-called ?self-employed workmen? involved in an antitrust violation, the tendency on the part of the antitrust division to seek that kind of a broadened decree.

The Court took the stipulation and heard argument and briefs, handed down its decision agreeing with the Government and adding the three specific mandatory injunctive provisions for expulsion and refusal of membership in the union.

Now, it would be unduly burdensome upon the Court to go in to the very detailed factual situation.

It’s all set forth in a stipulation in the record which the Court copied in haec verba in his findings of fact and conclusions of law.

Suffice it to say that that stipulation maybe summarized as follows; that this law for union beginning to the activities primarily of the individual business agent who was joined as a defendant and four of its grease peddler members who comprise a grease peddler committee, a sort of a self-anointed committee within, to their activities primarily over the period of time from October 1954 to the time of the complaint in May of 1959, engaged in a plan and program most extensively violative of the antitrust laws.

The program consisted primarily of the following, the union was approached by some 10 or more grease peddlers in the City of Los Angeles who found that their earnings have suffered for the past couple of years, they asked the union membership.

Mr. Singer, the union agent on behalf of the union, told them that they would be accepted into membership and then and there an arrangement or understanding was arrived at between them which called for the unionization of all of these types of grease peddlers in the city some 45 to 50 in number, an arrangement that none but union members would be permitted or authorized to pick up grease at restaurants and sell it processing houses, an arrangement and understanding that some effort would be made to stabilize or fix the price at which these peddlers would pay the restaurants for their waste grease and the price at which they would sell the waste grease to the processing houses.

That this program envisaged the raising of the earnings of these people.

These earnings were based upon the difference between the buy and sell price of the waste product.

That the conspiracy was carried out to a considerable detail and in candor requires me to state in many instances in a most ruthless manner and one that finds neither support in the antitrust laws nor in morality either so far as that is concerned.

These individuals and the agents ran wild.

They used picket lines inappropriately to accomplish these objectives and the net effect of it, and this is not questioned here because it emerges from the stipulation, was that only union members engaged in this somewhat peripheral industry in that city that prices were fixed, territories were allocated, it was an agreement among these union members not to compete one with the other.

Charles K. Hackler:

The evidence disclosed, and this is somewhat significant I believe, that this small segment of members the union were a sort of an internal subdivision given the name of Local 626-B, although not separately chartered, they were a separate division so to speak.

They held separate meetings, this committee and Mr. Singer, their mentor, handled punishments for violation of the rules that had been set up in the program that had been set up, and in all practical respects, operated separately from the Local.

I point out as perhaps significant that there is nothing in this very detailed stipulation and I might state the Government will agree with me that whatever the Government said it had evidence to prove, I agree to stipulate.

This had resulted.

There had been a companion indictment.

Discovery was quite limited and the facts are strong as the Government could make them as the price of the decree, be that as it may.

With all of these, there is nothing in the decree suggesting action on the part of the elected executive board of the Local Union or the 2400 members despite the fact that that constitution and evidence shows that it is an autonomous Local, its members, its officers elected, and conducted membership meetings.

That is not said by way of retaliation of the conduct that took place nor to say that the Local Union was not responsible because its responsible officials and members indeed must have looked the other way when this rather sordid business was taking place.

Now having said this Your Honors, we come the proposition as to whether or not under these set of facts, it is appropriate to import into this antitrust case the concepts of divestiture, divorcement that have been common in antitrust cases, involving commercial enterprises.

The court below and I take it to be also the theory, the primary theory of the Government here, addressed itself, so far as I know the first time in an antitrust case, to a determination as to whether or not these grease peddlers, 45 strong, were the ?proper subject of unionization.?

He said that they were not the proper subject of unionization, ?unless the evidence affirmatively showed that at the trial of the case that they were somehow competitive with employee and truck drivers doing the same kind of work as they themselves were doing.?

And secondly, ?unless there was evidence below that the union’s motivation in taking this kind of individual into membership was a desire and a purpose to protect the negotiated wages and working conditions of the employee, truck drivers against diminution at the hands of the self-employed truck driver.?

Having made those two dicta, the Court said there is no evidence in the 72 stipulations that reasonably could — the — that an inference could be made of these two conclusions.

Therefore the Court said, these men are businessmen, they are entrepreneurs, they are not the proper subject of unionization.

That being true, I have the power, indeed the duty, under this aggravated set of facts to perpetually not only exclude the four defendants, the 45 other peddlers who had membership in the union, but to perpetually enjoin the union from taking into membership ever in the future a self-employed grease peddler regardless of its motivation, regardless of its relationship or indeed regardless as to whether even that peddler had any knowledge of the facts of this case.

Byron R. White:

What are the Court’s view, was it quite [Inaudible]

Charles K. Hackler:

That comes Your Honor as rather a surprise.

Although, the findings of the Court and indeed even in the brief in this Court the correct summary of the Court’s findings repeatedly referred to the fact that it was this small segment, a sort of an infiltration of the union or a misalliance as it says in some places between the union as an entity and the small segment, that this small segment was itself the conspiracy when a decree was drafted, there was nothing said about that.

There was this, without any explanation, there was a movement cleared over to the general body of the union.

When the decree was drafted both the Court and opposing counsel unconsciously perhaps or certainly without any logic in the record moved over and treated the commonality of the 2400 members.

The whole unincorporated association, they equated it with this segment.

We would not have imposed — opposed and indeed I state to the Court today that on this record, certainly no one could reasonably oppose a decree that ordered this union, stop having a separate segment within your membership, separate meetings of this group because that might be a tendency to repeat what has happened in the past, scatter these people among your members.

There is no legitimate reason to have these self-employed grease peddlers at least to function even ad hoc separately with union membership, but now the arguments that are made here —

Arthur J. Goldberg:

That is according to you that [Inaudible] and that was asked for by the Government regarding your case?

Charles K. Hackler:

That’s correct.

Arthur J. Goldberg:

Now, that’s the decision the Government finds that the [Inaudible]

Charles K. Hackler:

It’s my understanding that they were, this forced expulsion of the members.

The case was not appealed.

I do not have a copy of the decree, but the Government’s brief states that the decree was so entered.

Tom C. Clark:

Well, the [Inaudible] clients seems to be people who are on roles of 626?

Charles K. Hackler:

Yes, Your Honor.

Actually, all that 626 — the chartered Local Union affiliate is 626.

This was only an informal designation of a segment of the members.

Tom C. Clark:

Were they permitted to vote and enroll?

Charles K. Hackler:

They had no — they had no officers but according to the stipulation they met separately in sort of ad hoc meetings in this committee and the record doesn’t show where it came from, I (Voice Overlap) —

William J. Brennan, Jr.:

But did they participate in the general affairs of 626?

Charles K. Hackler:

That is correct.

William J. Brennan, Jr.:

They didn’t vote?

Charles K. Hackler:

They had a right to vote.

Yes, Your Honor.

Arthur J. Goldberg:

[Inaudible] could they meet with them and to that effect?

Charles K. Hackler:

They met separately.

Arthur J. Goldberg:

Well, wasn’t it 2400 met at 626, is it?

Charles K. Hackler:

Yes ,Your Honor.

Arthur J. Goldberg:

What I’m trying get at was, the 55 come to that meeting [Inaudible] average ordinary union members who would —

Charles K. Hackler:

The record does not state but as a fact they were entitled to and they did subject of course to their being absent because they didn’t care to attend.

William J. Brennan, Jr.:

Members have charges to them the same as to (Voice Overlap) —

Charles K. Hackler:

Slightly higher, initiation fee and slightly higher dues, but again that was not thought to be by the Government, it isn’t a part of the stipulation but it is a fact.

Tom C. Clark:

Did any of them belonged prior to this understanding, the recruitment?

Charles K. Hackler:

The record is silent as to that and no, sir, as to whether they all — as a matter of fact the record only shows the beginning in 1954 after the 10 fellow members of this group came to the union to ask for its assistance that only that a majority of them joined, entered at or about that time.

Tom C. Clark:

Could the processors, drivers — I understand they had drivers, is that right?

Those who’d vote, and [Inaudible] direct from the record.

Charles K. Hackler:

Yes ,Your Honor, I think —

Tom C. Clark:

[Inaudible] belonged to a union that —

Charles K. Hackler:

Yes.

I think perhaps the crux of this and we can save time if I just read two very brief paragraphs from the findings which it seems to me that on the face of them show a legitimate interest to this union in representing these people.

This, I’m reading from page 57 of the record, it’s finding of fact 6; ?This self-employed peddlers had no established places of business, no employees except an occasional loader, no capital investment except a small equity in a truck, no skill or special qualifications except the ability to load, unload and drive a truck.

They drive from restaurant to restaurant, picking up small amounts of waste grease in cans and on the same day, transport and unload the entire collection to one of the processing companies.

Their earnings represent the difference between the buy and sell price of the waste grease diminished by the cost of maintaining and operating the truck.?

Paragraph 16 on page 59 as to the employee drivers, ?For many years Baker, Western Tallow, Peterson and to a lesser extent Washington, those are four of the eight processors in that city, used the services of employee-truck members of defendant union under union contracts to pickup and transport the restaurant grease and other meat waste purchased by them directly from hotels, restaurants, and institutions.

Charles K. Hackler:

Such purchases were usually made from larger establishments and the grease peddlers usually applied restaurant grease from the smaller establishments and other sources where the supply of restaurant grease was relatively small or irregular in unavailability.”

Now, another stipulation here sets forth that of the eight processors in that city, these four used in varying degrees employees as well as peddlers to pickup the grease and two of them used employees under union contract exclusively.

Well, it was our feeling below and we feel that it is — this is a strong argument here that these two stipulations alone are sufficient to show under the rulings of this Court, the legitimacy of the interest of this union in representing having something to do with, taking into membership these grease peddlers independently of any antitrust problem.

Tom C. Clark:

As I understand it, the only peddlers it would reach would be the independent one that had no employees?

Charles K. Hackler:

That isn’t — that is correct, that is correct.

Now, our — we feel the Court that — I think a fundamental difference aside from the non-sequesters as we see it in the Government and the Court’s reasoning namely to move from a small segment of people who misallied themselves with the union, to use the Government’s own expression many times in its brief.

In place of dissolving that misalliance by putting to an end, if you will, whatever combination existed separately within the union of these people, that the misalliance was forgotten and the scene of the few was visited upon many, and a forfeiture worked upon the whole union in what otherwise clearly on this record would be its legitimate right to protect itself and its employee-drivers from the inherent competition of workman doing precisely the same work, on precisely the same kind of equipment, with precisely the same tools for precisely the same economic — precisely the same businessmen, the only difference be — being, the manner of payment.

William J. Brennan, Jr.:

Mr. Hackler, is there anything appears to the number of employed drivers?

Charles K. Hackler:

No, Your Honor, the record is silent as to that.

Other than percentages and — that for example, the four that I mentioned here, I think there is one stipulation here.

No, that’s the substance of it.

I don’t like to be so vague in these matters but this stipulation is what the Government asked for and the only thing I got in the stipulation, to be painfully honest, was this paragraph 6 which described the —

Potter Stewart:

Isn’t there a finding that there was no competition here?

Charles K. Hackler:

There is a finding by the Court and that moves me to I think our fundamental difference with the Government and with the Court.

The Court said these findings, he concludes from these stipulations, that there was no competition, by which he means there’s no direct evidence.

Potter Stewart:

Where is that finding on — in the record, what page?

Charles K. Hackler:

It’s in the Court’s decision actually.

Stating the two basis, the grease — page 45 of the record —

Potter Stewart:

45?

Charles K. Hackler:

? the transcript.

Members of — the members of defendant union engaged in loading, unloading, and transporting meat and meat products for packing houses and related employers.

Every processor of yellow grease in the Los Angeles area has employees who were members of the defendant union.

The grease peddler defendants — dependents or independent self-employed businessmen who purchased waste grease from restaurants and other institutions and then transported the grease in their own trucks to the processing companies to whom they sell the grease.

Now, the conclusion; these facts do not show that there is competition between the peddlers and the union employees or the processors.

On the contrary, there is no competition between these groups.

This is significant because each is engaged in a different line of work.

The peddler is buying grease, transporting and selling it to the processors and the union members performing other functions for their employers.

By that —

Potter Stewart:

Would you concede that if that were true, that this order is not improper?

Charles K. Hackler:

No Your Honor, for this reason I take really two approaches to the thing.

Charles K. Hackler:

First, I think the Court is wrong in saying that in a case of this kind there must be specific evidence before that Court of the union’s right to represent these people where the overall situation shows that there is an economic interplay of the two groups.

Or put it in another way, very frequently, a union has a right to organize or represent people before there has become a conflict, before the owner-operator or peddler has undermined his working conditions.

He has a right because of his economic position.

Now, we think we’re right there because certainly this Court has said so without any evidence in the Duplex case where they said it was a victim of the trade union movement, that persons in a trade union necessarily are interested in the standards of work and earnings for their craft in the community.

The Court didn’t say there was evidence below.

Now, we feel that certainly, I’ll put it in another way, certainly in drafting a decree which is only supposed to be protective of the policies of the Act, not itself full dressed, where the violations are clear, we feel that it isn’t incumbent upon us to come in and say, to do so might nullify the very value to the union of representing those people.

They would say that — we would have to wait until conditions have been broken down.

The second, and I think to me much more cogent point and one that the Court just brushed over without really any consideration and that is the express provisions of the Clayton Act with respect to labor unions.

Now, this raises the whole question and I think this is why 70 years had gone by without there being divestitures of union membership, although there have been —

Potter Stewart:

Now, let’s take a case of — where there clearly was not actual or potential economic competition.

Let’s say that all the retail druggists in the Los Angeles area joined the Teamsters Union and formed a sub-local and in that guise carried on flagrant violations of the antitrust law.

Couldn’t the Court order then that the union expel them and keep them out?

Charles K. Hackler:

I would say no, assuming the factors as follows, that this is not a separate labor organization.

I would go along and say, that if businessmen cannot labor themselves a labor organization and thereby achieve any sort of immunity under the statute.

I say, however, if a man — in one context are businessmen, businessmen workers as some courts call them and if they align themselves within otherwise legitimate labor organization that the antitrust laws forbid that and order expelling them from that union.

[Inaudible]

Potter Stewart:

The automobile industry joined a labor union, they could carry on violations of the antitrust law and the Court couldn’t order the General Motors and the Ford Motor Company and Chrysler be —

Charles K. Hackler:

No, they —

Potter Stewart:

— expelled from Teamsters union?

Charles K. Hackler:

The problem is the scope of the remedy.

No one says —

Arthur J. Goldberg:

Who would recognize it?

I take it that the violation of the antitrust law has [Inaudible]

Charles K. Hackler:

Oh, yes, and they were —

Arthur J. Goldberg:

[Inaudible]

Charles K. Hackler:

They were enjoined in great detail here, I am simply saying —

Arthur J. Goldberg:

And the Court [Inaudible] necessary to enjoin [Inaudible] —

Charles K. Hackler:

Sport short —

Arthur J. Goldberg:

[Inaudible]

Charles K. Hackler:

That is correct and I say that that comes from statutory — has a statutory basis.

Charles K. Hackler:

Now, this Court has in effect said that I will find by the nature of the man’s work that if he’s at common law and independent contractor and a non-employee, he isn’t a proper subject of unionization unless you prove certain facts.

We say on the contrary that in the Clayton Act, the language expressly moves away from common law concepts.

Take the broad language it starts with in Section 6, ?The labor of a human being is not a commodity or article of commerce.

Nothing contained in the antitrust law shall be construed to forbid the existence and operation of a labor, agricultural or horticultural organization instituted for the purpose of one, mutual help; two, not having capital stock; or three, or not conducted for profit or to forbid or restrain individual members.?

Now it doesn’t say employees are independent, it says members of such organizations from lawfully carrying out the legitimate objectives thereof nor shall such organization and this is significant or the members thereof be held or construed to be an illegal combination.

Now, the Government keeps saying, we’re not holding the union as such an illegal combination.

That’s the — but in reality accept semantically you are when you tell a union perpetually you, of all of the unions in this country cannot take into membership a class of workers and these men work.

They pickup grease and cans and put them on trucks and all of them, to the processing plant.

They do precisely the same physical labor with precisely the same tool that the employee does.

The only thing that’s different with these men is their method of compensation.

And that was — and I say that the drafters by the very language itself, they departed from common law concepts.

Now, the Government would read this as saying where it says flatly you can’t order members out of a union, they would say employee members.

Now, there’s a footnote in the Government’s brief where it says, a different and more difficult question would be involved, and this is the danger of these kind of cases, if these men were not — if their payment was not based on the buy and — difference between the buy and sell price of a product, but they were still technically independent contractors.

So that even now the Government is apparently trying to push back the right of a trade union to employees in dealing with employers.

Mr. Justice Black had to deal with a similar effort to restrict the scope of the Norris and — oh, I’m sorry, and the Clayton Act in the Chicago Northwestern Railroad case where the argument was that if the subject matter of the labor dispute could not be the subject of negotiation, it wasn’t a labor dispute and they correctly held —

Potter Stewart:

Mr. Hackler, excuse me.

Charles K. Hackler:

— that was not the —

Potter Stewart:

Before you sit down I have question of fact.

Did the District Court retain jurisdiction with this controversy?

Charles K. Hackler:

There are — only in this sense there’s a broad visitation, a provision in the decree and the right to inspect records and to order reports from the union from time to time.

Potter Stewart:

What was on my mind was whether — would there be an opportunity for you at some subsequent time to show potential or actual competition among these indi — independent contractor employees —

Charles K. Hackler:

The Government suggest, we would have such an opportunity.

There is nothing in the decree, I think I should say that neither says that we can or cannot —

Potter Stewart:

Cannot show.

Charles K. Hackler:

— show them.

Thank you.

Earl Warren:

Mr. Hummel.

Robert B. Hummel:

Mr. Chief Justice, may it please the Court.

I’d like to start by addressing myself to the question of the Clayton Act.

I refer the Court to footnote in the Columbia River Packers Association versus Hinton, where the Court says, Cf. Section 6 of the Clayton Act, a labor of a human being is not a commodity or article of commerce, 38 Stat. 731.

Robert B. Hummel:

The Norris-LaGuardia Act manifesting the purpose of the Congress further to extend the prohibition of Section 20 of the Clayton Act, New Negro Alliance versus Grocery Company, cannot be taken as having erased the distinction between an association of commodity sellers and association of employees.

Now in this case, the Court is dealing with an association of commodity sellers.

626-B is an association of independent businessmen by stipulation.

The Court, we submit, need it to dissolve 626-B in order to prevent future violations of law and in order to restore competition.

We submit that nothing in the policy of labor laws protects an association of independent businessmen formed within a labor union from dissolution which is ordered as a result of a necessity arising from previous violation of law.

Arthur J. Goldberg:

[Inaudible]

Robert B. Hummel:

Yes, Your Honor.

It was not discussed in the Court’s opinion.

It was issued as a matter of course by way of relief and no appeal was taken.

Arthur J. Goldberg:

Was that the [Inaudible]

Robert B. Hummel:

This was the only case that I’m aware of, yes, Your Honor.

I shall not review the facts. They’ve been candidly and fully stated by counsel, but by way of preliminary, we suggest that the dissolution of a trade association is not an unusual remedy.

This Court itself decreed such relief in the Hartford-Empire case where lower court injunctions against an association whose primary functions were dissemination of trade statistics which have been used to violate the Sherman Act.

The Court — lower court had enjoined the dissemination of such statistics.

Now, this Court said there’s very little left to this association in order to protect against future violations, we shall order it to be dissolved.

We do not however rely simply on this decision because we realize that in each of these cases the relief depends upon the facts of case.

There has to be a need for this kind of relief.

We submit that the lower court was fully justified because there was here such relief.

I may say that the suggestion that 626-B would somehow be dissolved without excluding it from the union is a surprise to us.

626-B only existed as a subdivision of the union and it derived its strength and its power from its association with the union and we submit that the lower court’s judgment in this respect was quite correct.

John M. Harlan II:

Well, the real issue between you and your opponent is [Inaudible]

Robert B. Hummel:

Well, we submit Your Honor that there is power because the power of the equity court is to remedy —

John M. Harlan II:

[Inaudible]

Robert B. Hummel:

I was not certain Your Honor —

John M. Harlan II:

[Inaudible]

Robert B. Hummel:

What is the nature of ? We think it’s quite clear that there was power that the power of the equity court is to remedy a situation to prevent future violations and to restore possibility of competition.

We submit first of all that this 626-B comprised within its membership some persons who were forced in.

The original plan was, as counsel stated, that those peddlers who did not voluntarily joined would be forced to the membership because they would have no place to sell their grease.

The record shows only one such peddler, but we are entitled to assume, I believe, that there were others.

Now, we submit that to get such peddlers out to freedom from the association with the union into which they have been forced was necessary for the Court order that all be excluded from the union.

Robert B. Hummel:

So as to avoid the necessity of any of these individuals having to stand up and take the chance of retaliation in a circumstance where conduct as counsel has quite accurately described it, was ruthless and we submit it was also devious and generally in this regard of the law.

Arthur J. Goldberg:

Was there other opinions [Inaudible]

Robert B. Hummel:

Yes, Your Honor.

Arthur J. Goldberg:

[Inaudible]

Robert B. Hummel:

Yes, Your Honor.

But we submit that —

Arthur J. Goldberg:

[Inaudible]

Robert B. Hummel:

These members were independent businessmen and this we think makes a difference.

Our —

Arthur J. Goldberg:

[Inaudible]

Robert B. Hummel:

Your Honor, if Your Honor please, I am —

Arthur J. Goldberg:

[Inaudible]

Robert B. Hummel:

Yes Your Honor, but I am also suggesting that these members would have reason to fear retaliation and therefore would not get out of the union as a result of that fear.

In this context and the Court was entitled to take that consideration into account and therefore to order that all get out.

Second, we submit that one legitimate and proper purpose of a Sherman Act decree is to place opportunity and temptation beyond the reach of the defendants where there is an absence of strong purpose for a continued association.

This issue we think speaks for itself here.

The defendants in this case engaged in — finally in an agreement to conceal the evidence of our conspiracy engaged and forced — threats of force — I’m sorry, that if — there is no stipulation of force.

There were threats of force.

There were faults, strikes called in a situation where the purpose was to coerce business activity.

We think that this is the kind of conduct which this Court had in mine in the Crescent case, in the Hartford-Empire case where it spoke of the proclivities of the defendants and the opportunities for continued violation.

I believe that the District Court had power to place beyond the reach of these defendants, temptation and the opportunities for further violation.

I don’t —

Potter Stewart:

Do you think you’re as — assuming, assuming that the District Court did have power to do what it did?

Does it strike you that the decree is a little bit inflexible, conditions might change.

They’re certainly just as — from the underlying facts, there is a potential competition between these individuals — the independent contractors and employee-drivers.

Certainly, there’s nothing that prevents non-employees from being members of the union along with employees.

We had that MEBA case last term involving that [Inaudible] ? Shouldn’t ? [Inaudible] left for a change conditions as to, refused membership at any time in the future, to any grease peddlers, isn’t it a little bit inflexible?

Robert B. Hummel:

We submit that wound is left Your Honor.

There is a continuing jurisdiction in the Court to modify an equity decree to resolve the change of circumstances and if upon a showing that there were some change of circumstances, the defendants could come in, present to this Court a situation which would present a legitimate reason for these persons to be associated in this union and allowing a sufficient lapse of time to assume that the extent of the violations of law had been ameliorated, then we submit that the Court could modify its decree.

John M. Harlan II:

Well, did the Government object to a [Inaudible]

Robert B. Hummel:

We would not Your Honor.

William J. Brennan, Jr.:

Mr. Hummel, do you make any notice of stipulation of 69 at page 33, indicates that presently there are only two processors, is this right?

Robert B. Hummel:

Yes, Your Honor, and that (Voice Overlap) —

William J. Brennan, Jr.:

To make any purchases and both of them, one apparently, the owner about those processors is a member of the union and the other processor, one of the truckers is a member of the union according to this stipulation.

Now, were they enjoined in any way from dealing with grease peddlers?

Robert B. Hummel:

No, Your Honor and I think this reflects the fact that this could not result from a general policy of the Department of Justice to ask that independent peddlers be excluded from union membership whether independent businessmen.

William J. Brennan, Jr.:

Well, do you support this dissolution in any ways on the basis of the fact that there are only two processors that which provide a market now for this grease?

Robert B. Hummel:

I was coming to that Your Honor.

That is our third reason for a necessity for dissolution.

Here are two processors, consisting of the only two persons in this market, who are still a market for peddlers.

One of them is a union member.

He owes his existence in this business virtually to the union in 1958, the Star Grease, in 1958, when this company began business, came to the union representative and said, ?We’re having trouble selling our grease, and would you dispose 80000 pounds of it for us.?

The union business representatives went to another one, another processor and said, ?Would you sell it for him??

This processor fearing union trouble did.

Shortly thereafter, in meeting of the union committee and the processors, this processor, Star Grease, was given one-third of the available supply of the grease supplied by these peddlers.

At this meeting, the union business representative Myer Singer was a defendant here represented Star Grease.

And so here we have a company, three and a half months after he’s gone into a business getting one-third of the available supply as a result of meeting of the union and at the same time having the union help in disposing of its grease.

This is one of the two processors left.

The other one, one member of that firm is a union member and the other is a — his partner has six months after the institution of this case and threatened by the business representative of the union and told that when another processor had been taking care of him, he would be next because he had testified before a Senate Investigating Committee.

Now, in this circumstance, we think that the Court to free up this market, to provide a place where peddlers who did not wish to belong to the union could sell their grease without being discriminated against because they either did or did not represent themselves to be union members.

The Court could properly order that these members be excluded from the union.

So that we conclude that there was a necessity here and arose not of any general policy that independent peddlers ought not to belong to a union but out of these specific facts of this case.

A point is also made with respect to the alleged fact of due process with respect to those peddlers who were not before the Court and that issue has not been argued and we rest on our brief.

We ask that the decree of the lower court be affirmed.