Nash v. Florida Industrial Commission

PETITIONER:Nash
RESPONDENT:Florida Industrial Commission
LOCATION:Formerly Sam’s Stationery and Luncheonette

DOCKET NO.: 48
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State appellate court

CITATION: 389 US 235 (1967)
ARGUED: Nov 09, 1967
DECIDED: Dec 05, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – November 09, 1967 in Nash v. Florida Industrial Commission

Earl Warren:

Number 48, Minnie E. Nash, Petitioner, versus Florida Industrial Commission et al.

Michael H. Gottesman:

Mr. Chief Justice, —

Earl Warren:

Mr. Gottesman.

Michael H. Gottesman:

— may it please the Court.

I hope the Court will indulge me, I had about with myringitis this week and I seem to be losing it.

This case is here on writ of certiorari to the Florida District Court of Appeals.

That issue is the constitutionality of a rule adapted by the Florida Industrial Commission that an employee who is otherwise eligible for unemployment compensation will automatically forfeit that entitlement by filing a charge with the National Labor Relations Board protesting his layoff for discharge.

The facts in this case are quite simple and we think rather neatly demonstrate how this rule was going to work in the future.

The petitioner was a member of the Steel Workers Union which was the bargaining agent at her plant.

They caught — the bargaining agreement came to an end.

The parties had been unable to negotiate a new one.

A strike was called and the petitioner participated in that strike.

The strike was to save at least the flop.

It was unsuccessful.

The company kept operating.

And as a result, after a few weeks the union on behalf of all the employees announced that all of them were prepared to return.

The company took back some of the employees including petitioner but did not take back some of the others.

Now, petitioner made no claim for unemployment benefits during the period of the strike.

Florida, as does, I think every state denies unemployment during the period of the strike and no claim was made during that period.

But three or four weeks after petitioner had come back to work, the company advised her that she was laid off.

She was laid off said the company because we don’t have enough work to keep you busy.

And so she applied for unemployment benefits and began to receive them.

This is the typical case on which unemployment is paid.

Three weeks thereafter, as petitioner saw many of her fellow participants in the strike also being laid off, she and they decided that perhaps the real reason they had been laid off was not as the company said because there wasn’t enough work but rather because as a means of retaliation for them having participated in the earlier strike.

And so, petitioner and her fellow laid off workers asked and got the union to file on their behalf the charge with the National Labor Relations Board asserting that the real reason they had been laid off a month earlier and were still on layoff was because they had favored the union and was as a means of retaliation.

Now, though the procedures are complicated with the Florida Industrial Commission ultimately held was that petitioner was entitled to have received her unemployment compensation as she did.

For the first four weeks of that layoff because as the Commission said, during that time she did not challenge the layoff but said the commission the moment she filed that charge with the Labor Board, she automatically disqualified herself and forfeited any right to further unemployment compensation because said the commission, we will deem the filing of the charge the creation of a labor dispute.

And through some artificial means that I frankly cannot comprehend, we will now say that having filed that charge, her unemployment is caused by a labor dispute though we don’t say that for the first four weeks while she remained silent that it was caused by the labor dispute.

So we have a ruling which is a little bit hard to square with Florida’s own statute but of course we can interpret it as it will that if a company says you are laid off for economic reasons, you are until you dispute it.

And at the moment you dispute it the active dispute, the active going to the National Labor Relations Board causes your unemployment to be due to the labor dispute.

Potter Stewart:

Oh, I suppose the theory would be that she could not be heard to say that the layoff was not caused by a labor dispute.

Michael H. Gottesman:

Well —

Potter Stewart:

And she’s the one who said it was that — she was laid off because of her union activity.

That’s neither here or there you could say —

Michael H. Gottesman:

Well, if that were the theory —

Potter Stewart:

— it’s smarter to say its law means whatever it wants to say it means.

Michael H. Gottesman:

That’s right.

It could — but if that were the theory, I don’t even think it’s that because if that were the theory, you would disqualify her for the whole period since what she’s complaining about is not all of a sudden it became an empty union layoff.

What she’s saying is the whole period of my layoff has been from my union activities.

So if the theory is that she can’t be heard to contest what she claims, the theory would have to be let’s disqualify her for the entire period.

But it’s clear indeed and that that’s not what Florida is doing here.

What Florida is saying is regardless of why you’re laid off, we’ll pay you your unemployment compensation as long as you remain meek and dazzle but the moment you go to the big fat Federal government, we’re going to disqualify you.

That’s exactly what they said and that’s exactly what they’ve done.

Potter Stewart:

You mean — say they, that’s only the examiners.

We don’t have any opinions to, said the examiners.

Michael H. Gottesman:

We have — he is called the appeals referee I believe.

Potter Stewart:

Is that what’s he’s called?

Michael H. Gottesman:

The examiner first issued a ruling–

Potter Stewart:

He is the administrative officer.

Michael H. Gottesman:

That’s correct.

Potter Stewart:

That’s the only opinion there is in this whole matter?

Michael H. Gottesman:

That’s true because the Florida Industrial Commission itself affirmed without opinion and the Florida District Court and Appeals denied certiorari which I assume does not constitute a ruling on the merits though it necessarily means under their law that it found no important question.

So in a sense it’s really an affirmance, that’s a little bit different than the test which —

Potter Stewart:

They stopped —

Michael H. Gottesman:

— this Court’s denial.

Potter Stewart:

They stopped at the level of the Court of Appeals, did they?

Michael H. Gottesman:

Yes that there was at the time, sir it was — originally petitioned for here, the dispute is to whether there was a right of appeal to the Florida Supreme Court.

The claim has not been renewed on the merits now.

We answered it fully in our replied brief at the time of the petition for certiorari.

There is no right of appeal from the District Court’s denial of certiorari in this case.

Michael H. Gottesman:

The only way this case could have gone further is that the Florida District Court had certified it to the Supreme Court as an important question and it thought it’s so unimportant not even to hear it.

So it certainly — that is in fact the case did not certify it to the Florida Supreme Court.

But the fact is this case is — the same rule is being enforced in many other cases and has been approved in some Florida cases with opinions one of which is cited in the respondent’s brief here.

Now the way the Florida rule is going to work I think is quite clear.

Florida is saying to the employees who think they’ve been laid off in violation of the federal law, “You have a choice.

If you remain quiet then you will receive what amounts to cash under about a 50 bucks a week from the moment you’re laid off you’ll get it when you needed it which is while you’re unemployed or your other choice.

If you think you’ve been unlawfully laid off is to go file a charge with the National Labor Relations Board which to be sure may ultimately reward you with more money because you will get the full amount of your back pay.

But there are two problems with that.

One is that as this case demonstrates, it is literally years till you collect from the Labor Board.

In this case, the Labor Board’s decision came down two years and three months after the charge was filed and it’s now still pending in the Court of Appeals.

And if you are hungry while you are laid off, that late arrival of the money is not going to help pretty much.

And the second problem of course is you just might lose before the Labor Board.

Many people do.

In which case, by having taken that gamble you’ll lose everything.

So that it is not hard to imagine that in the future, very few people are going to go to the National Labor Relations Board when they’re in this circumstance in Florida.

Only those who can afford the gamble that is, who have enough money to feed themselves in the interim.

And they are willing to take the chance they might lose everything instead to take this assured $50.

Only those people and I think there’ll be few are going to choose to go to the National Labor Relations Board.

And the consequence that’s going to have on the enforcement of federal law I think is also quite clear.

The Labor Board as has been mentioned in the earlier case through comparison, the Labor Board is not a self enforcing agency.

It can entertain a case and investigate a case only when a charge is filed with.

If Florida successfully persuades unemployed people they better not file charges.

Charges will not be filed with the Labor Board.

If they’re not filed the Labor Board does not have authority to correct violations of federal law, does not have authority to enforce the public policy.

If they’re not filed, employers are going to discover a very easy way to combat unionization as the Labor Board points out in its amicus brief.

All it need do as unionization begins is to start laying people off for economic reasons.

The employees will not fail to get the message but they’ll be foolhardy if they challenge so long as the Florida rule here is established.

For these reasons, we submit as the Labor Board in its amicus brief that the Florida rule clearly violates the Supremacy Clause.

We have a National Labor Relations Act.

We have a board whose job it is to enforce it.

Michael H. Gottesman:

It’s enforcing a public policy not a private interest as is asserted by the respondent’s brief.

In enforcing that public policy, it’s dependent upon the people who are injured coming to it and Florida is preventing those people from coming to it by imposing a penalty where they’re coming to.

We think it’s clear, we’ve cited many cases that demonstrate that it’s clear that Florida just can’t do that.

There is also a second basis upon which we challenge the constitutionality.

Now, with what Florida is doing here, looking at it not from the interest of the Federal government but from the interest of the individual who is putting this dilemma.

We say that that person has a constitutional right to go to the Federal government and to ask for its protection and to ask for the enforcement of its laws.

And that what Florida is doing here is exacting a price for exercising that constitutional right which it may not permissibly do.

No — it’s easier to assert that there is such a constitutional right to go to the government than it is to say precisely where that right comes from because I think if this case arose for the first time today, this question, the likely source of that right would be the First Amendment which creates a right to petition the government as it has been incorporated or read into the Fourteenth Amendment.

But ironically, this question first got discussed by this Court before the First Amendment had been incorporated into the Fourteenth.

It first got discussed in Slaughterhouse cases in 1873.

And in those cases in which this Court virtually read the privileges and immunities clause out of the Fourteenth Amendment, it felt the certain responsibility to say that there was some content left to it.

There’s some reason why that clause was put into this amendment and it said the purpose of this amendment of the privileges and immunities clause is to protect those rights which are inherently those of national citizenship that relate to the rights of the citizen with the Federal government itself.

It then went on to enumerate some examples which might very well have been to this case the right to petition the Federal government for the aid and comfort and assistance, the right to inform the Federal government of violations of its laws, the right to deal with the Federal government to assist it in carrying out its functions.

These are the privileges and immunities enumerated in the Slaughterhouse cases repeated in many cases since then.

And these are precisely the kinds of things which the petitioner in this case was trying to do when she had her charge filed with the National Labor Relations Board.

Now, it’s true, I might say, Privileges and Immunities Clause uses the same operative verb as the First Amendment abridged.

No state may abridge the privileges and immunity.

And it’s true that Florida has not abridged them here by making it a crime to go to the Labor Board nor has it attached the act of going to the Labor Board.

But we take it clear from any of this Court cases under the First Amendment that what Florida has done which is to impose a penalty which amounts to a financial penalty for going to the Labor Board constitutes the kind of abridgement which is forbidden by the Privileges and Immunities clause.

It’s true as respondent contends that unemployment compensation benefits are a privilege, not a right and that therefore in large measure the state is free to dispense them as it will to give them to everyone or to no one or to classify them as it would like.

But it’s also clear that there is one limitation on the state’s right to dispense its privileges and that limitation is that it may not condition the recede of them upon the foregoing of the constitutional right or the federal constitutional right.

Abe Fortas:

You refer the right to unemployment benefits as discretionary with the state, will you state that more accurately.

Do you regard unemployment benefits to the State of Florida as bringing in the matter of state penalty has been that line of cases or as conferring rights —

Michael H. Gottesman:

Well —

Abe Fortas:

— in this (Inaudible)

Michael H. Gottesman:

Arguably it’s not because it’s so interwoven with the federal unemployment scheme and some of the money comes from the federal system.

Abe Fortas:

I think that — arguably its not what?

Michael H. Gottesman:

Arguably it’s not about the innocence that other rights might be — other state benefits would be bound and that it is interconnected with the federal law and it survives because it in effect behaves pursuant to federal standards and unemployment compensation.

But we’re prepared for the purpose of this case to assume as this Court did in Sherbert versus Verner three years ago when it had another unemployment compensation case in which it was alleged that the denial of benefits was infringing on their First Amendment right.

The Court there assumed as we’re prepared to assume for argument that as a general matter, Florida can decide how it wants to dispense unemployment compensation.

Michael H. Gottesman:

It’s clear that Florida could if they choose –say, we’re not going to have any unemployment compensation law.

We don’t want the federal assistance that comes with that, we just don’t want to give anybody unemployment benefits.

Florida hasn’t chosen to do that, it’s chosen instead to quite generously give in most cases unemployment benefits.

And we assume that it can make certain classification.

We’ll even assume for the purpose of this case that it can say people who engage in strikes by getting themselves thereby in the labor dispute in which we want to remain neutral shall be in the class which we exclude.

I’m not sure if that’s right but we’ll admit that for this case.

Abe Fortas:

Wait a minute, say that over again, will you.

Michael H. Gottesman:

What Florida says as to — I think there are 48 states I, misspoke earlier, that an employee who strikes is not entitled to unemployment benefits while he’s on strike because for two reasons, really.

One, he had a choice of working instead of voluntarily unemployed.

And two, we want to remain neutral in labor disputes.

We don’t want to finance the strike by giving people money for it.

And we’ll assume arguendo that’s perfectly legitimate for Florida to make that kind of classification or many other kinds of classification.

Abe Fortas:

Suppose if the strike though that — defend the jurisdiction of the NLRB.

Michael H. Gottesman:

Well, most strikes are.

Abe Fortas:

Well, suppose it is and then you’d — you’re still want to concede that Florida may deny unemployment compensation payments.

Michael H. Gottesman:

Well, I say I’m willing —

Abe Fortas:

(Inaudible)

Michael H. Gottesman:

— I’m willing to concede it for this case.

Abe Fortas:

— is that right?

The person that —

Michael H. Gottesman:

I want to concede it because I don’t think it is necessary for this case.

We do — we struggle very hard in our reply briefs to say that when the time comes we’d love to argue that case.

But that case presents different questions we think than this one because in that case, Florida isn’t singling out the strike really and saying, “There is a weapon we don’t like if you engage in that weapon, we’re going to deny you unemployment compensation which we otherwise give you”.

What Florida is saying —

Abe Fortas:

Well, what you’re really doing is giving away your preemption argument aren’t you, to make that concession in your (Voice Overlap) —

Michael H. Gottesman:

No, we don’t think so at all Your Honor —

Abe Fortas:

— Supremacy Clause or preemption argument.

Michael H. Gottesman:

We don’t think so for this reason.

We don’t — we think it’s a different question for Florida to say.

Now, Mr. Jones, you can be employed if you want to.

Michael H. Gottesman:

Nobody is keeping you from working.

But if you voluntarily choose not to work tomorrow, either to go fishing or to go marching in a civil rights demonstration or to go on a strike, whatever reason you choose voluntarily not to go to work tomorrow.

We choose not to provide unemployment benefits to those who voluntarily absent themselves from work.

Now we’re not penalizing you for striking.

We’re not taking away from you something you’d get if you didn’t strike because if you didn’t strike, you’d be working you wouldn’t get unemployment benefits anyway.

Abe Fortas:

But do you believe that preemption or Supremacy Clause argument — claim has a role to play in your case, in the case before us now?

Michael H. Gottesman:

Yes, well — I believe that it has a role to play in the strike case too but what I’m prepared to say in this case is that whether or not it does there whether or not Florida can justify that distinction on the basis which it would come forward and justify.

It cannot justify this distinction.

What it’s doing here is that its saying to someone who would otherwise beginning unemployment compensation because you went to the Federal government, we are going to reach out and take away a benefit which we would otherwise have given you.

Abe Fortas:

Excuse me, I probably don’t understand you but I don’t see how you can argue your case under the — as a Supremacy Clause case.

I know you’ve got a lot of other arguments.

And at the same time, say that the Supremacy Clause argument would not apply in the hypothetical case you have been discussing where Florida withhold unemployment benefits merely because the person is — goes on strike.

Michael H. Gottesman:

Well, that — you see, the difference is that they don’t withhold them merely because the person goes on strike.

If the person didn’t go on strike they wouldn’t give it to them either.

And that’s arguably a difference.

I say that we don’t believe in that difference.

But we think, we’d — we’ll be happy to come here with the other case as soon as we can get one.

But we don’t think that that’s precisely the same issue as this one and we think here, the reaching out and taking away of benefits that you otherwise would be getting is more — at least certainly more clearly than interference with the Labor Act then it is simply the denial of benefits to one who wouldn’t otherwise get to anyway simply because he engages in a strike.

Now just one final point and that is to the claim made in the respondent company’s brief that whatever the abridgement of the individuals privileges and immunities whatever the interference with the operations of the labor — National Labor Relations Act, there is an overwriting state interest here which this Court should accept as a justification for what’s being done here.

At the outset, let me note that the Florida Industrial Commission which is itself a co-respondent here and which is presumably the voice of the state has not seen fit the file of brief.

We would think if there were in fact some compelling state interests to the kind which would justify the interference with the constitutional rights, that the state agency that’s administering the statute would have thought enough to have come and told this Court what they are.

The fact is indeed that there are no such compelling state interests.

None were asserted in the decision of the appeals referee in this case or anywhere up the line.

And the only one which the company having labored so hard is able to come up with clearly is not the kind of compelling state interest that would warrant the infringement with constitutional rights.

The company is alleged compelling state interest is that the state has an interest in avoiding dual compensation.

A state has a right to say we don’t want to give you unemployment benefits when there’s a chance you’re also going to collect from the Labor Board and therefore get double recovery.

And the simple answer to that concern is that it’s not a real concern because this Court said many, many years ago that if an employee after collecting unemployment compensation does get benefits from the Labor Board, you, the State of Florida in administering your Unemployment Compensation Act are free to recoup back the unemployment benefits you’ve paid.

Now the fact is, State of Florida since that decision has not chosen to setup any such procedure.

It has not been sufficiently concerned with double compensation in the intervening 15 years to have provided any procedure whereby it collects back double payments.

Potter Stewart:

Oh, I suppose it were shown that Florida wouldn’t try to recoup that the — that any back pay award would have deducted from it the amount of an unemployment compensation (Voice Overlap) —

Michael H. Gottesman:

Well, but this Court has held —

Potter Stewart:

— just as — just like the amount of earnings elsewhere.

Michael H. Gottesman:

That’s right.

But except that this Court has held that you can’t deduct from a Labor Board award or at least that the Board acted properly in adapting a rule to which adheres that unemployment comp — will not be deducted and —

Potter Stewart:

And if the answer is for the state to recoup (Voice Overlap) —

Michael H. Gottesman:

That’s — (Voice Overlap) which it could’ve done really on either way.

What it said was the answer is what the state do for — though Florida was told it could do it, it hasn’t seen fit to do it in 15 year.

I suppose the reason is because the number of these cases is obviously so small compared to the magnitude of unemployment system that it is more a bother to go collect back these few dollars from a few people and they just forget about it.

That being so, they’re not having bothered with the 15 years, they’re not having asserted in this decision that that’s a compelling state interest.

They’re not having filed a brief here to tell this Court it’s a compelling state interest.

We think it sits rather heavily for the company to come and say, “Allow these infringements with constitutional rights.

Allow this disruption of the operations of the of the Labor Board because there is this overwhelming compelling state interest in avoiding dual compensation”.

We just don’t think any such state interest exist here.

William J. Brennan, Jr.:

Please tell me Mr. Gottesman, the — I gather from this record, the company opposed this claim, did it in the first instance?

Michael H. Gottesman:

Yes indeed it’s opposed to — well no, not in the first instance.

I gather, the company originally went to the unemployment — when the person first applies for unemployment compensation, he comes —

William J. Brennan, Jr.:

Well, when they oppose that many went after she had file a —

Michael H. Gottesman:

Yes.

William J. Brennan, Jr.:

— charge, is that it?

Michael H. Gottesman:

Yes, after the charge was filed.

Byron R. White:

And who raised it once the file was charged.

It looks like — if the brief say the appeal — the rest of the appeal examiner or something raised this on his own (Voice Overlap) —

Michael H. Gottesman:

No, what happened here was in fact and this is what makes a funny procedure because you know, the case in which the law is made always gets somehow done retroactively.

Minnie Nash in fact got paid for the entire period of her unemployment.

Byron R. White:

Yes.

Michael H. Gottesman:

And then, the next thing she knew was that a month after she was back at work she got letters from the claim’s examiner saying, “Your benefits have been redetermined and we’ve discovered we made a mistake and you should not have been paid”.

Now we don’t know who went to him, we can give you a pretty good guess that it’s the company, but we don’t know that.

All we know is that a month after she was back at work she suddenly got a slip of paper which said that we have redetermined and discovered that we made an error and you should’ve been disqualified because you filed a charge to the Labor Board.

And that’s how this thing got reactivated.

She appealed that notice and —

Byron R. White:

And was there a hearing after (Voice Overlap)?

Michael H. Gottesman:

There was a hearing after that.

The hearing is — the hearing which appears in the record, it’s a —

William J. Brennan, Jr.:

And is that the one of — I noticed, it says, company counsel appears, is that right?

Michael H. Gottesman:

Yes, at that hearing, the company counsel very vigorously opposed the award of benefits to the petitioner.

William J. Brennan, Jr.:

How far back?

How far back (Voice Overlap) —

Michael H. Gottesman:

Company argued she should be disqualified for the entire period.

William J. Brennan, Jr.:

He — that was the company?

Michael H. Gottesman:

Yes, adopting essentially the suggestion that was made earlier right at the outset of my argument the theory being that she having claimed she was laid off, preempt the union reasons, that’s a labor dispute and a union reason.

And therefore, since she claimed she was — the whole period of the layoff was for that reason, you should disqualify her for that —

William J. Brennan, Jr.:

That’s what the examiner decided its purpose, I gather.

Michael H. Gottesman:

Well, not in his decision after the hearing.

The original announcement just said, you’re disqualified for the entire year —

William J. Brennan, Jr.:

That’s right.

Michael H. Gottesman:

— for a labor dispute.

That’s right.

After the hearing that was — the decision which was finally written says, as long as you don’t dispute it that’s okay, but the moment you file a charge with the board, that’s the labor dispute.

Now I might say that I don’t want to suggest that the trouble here was that they didn’t take away enough.

I think it’s equally — it would have been equally wrong for the state to have disqualified her for the whole period because Florida has this rather unusual dichotomy.

If an employer is foolhardy enough to come before the agency and say, “No, the reason I fired this person is because he joined the Union.

And therefore this is a labor dispute.

Don’t pay”.

Florida had such an employer in 1940 was it so and the Commission said it would be outrageous to deny a person benefits when you give and that is your reason for firing him.

That’s not a labor dispute if you fire him for empty union reasons and therefore we’re going to pay this person.

That was — we view that as a compensable unemployment.

Here, however, they say that if the employee goes to the federal agency and says that’s why he was fired that he’s going there and saying that is the disqualifying feature so that really was being penalized is not the fact that you were fired for supporting a union.

That it — would be shocking enough as far as we’re concerned but it’s quite clearly the act of invoking federal protection which is the disqualifying feature under the statute.

Earl Warren:

Mr. Greene.

Glenn L. Greene, Jr.:

Mr. Chief Justice and may it please the Court.

Glenn L. Greene, Jr.:

The subject of inquiry here today is a decision of the Board of Review of the Florida Industrial Commission and that decision as pointed out by Mr. Gottesman is to the effect that when an employee files an unfair labor practice charge with the NLRB, a labor dispute comes into existence and therefore pursuant to the terms of the Florida statute the employee will be denied benefits under the State Unemployment Compensation Act as long as the charge or the dispute is pending.

Now, and answer to Mr. Justice Brennan’s question, I think there have been four decisions by the Court of Appeals, various Court of Appeals within the State of Florida affirming such determinations.

As of this time, there has been no decision by the Supreme Court of Florida involving this particular issue.

Byron R. White:

And you get one of these cases to dissipate (Inaudible)

Glenn L. Greene, Jr.:

We were anticipating that this case might go there but as Mr. Gottesman has pointed out the procedure within the State of Florida in this particular area is —

Byron R. White:

This isn’t the only area —

Glenn L. Greene, Jr.:

Yes.

Byron R. White:

— for your procedure (Voice Overlap) —

Glenn L. Greene, Jr.:

It is rather complicated and we in our petition for certiorari oppose the jurisdiction of this Court because that first — the first impression that we have was that the state court procedure had not been exhausted but then after taking another look at it while we came to the conclusion that probably that it was.

So whether not the State Supreme Court of Florida will be reviewing one of these cases any time soon before the decision of this Court is forthcoming is not known but it is a rather complicated procedure and if this has anything to do with the absence of an attorney from the Attorney General’s Office from the State of Florida have no way of knowing.

But in any event, they did not file the brief but authorized me to appear orally for the commission at this time.

So basically, that is the problem before the Court and we think that the issue concerning this ruling is the reasonableness of this determination.

In other words, is the determination of the Board of Review to the extent that the filing of an unfair labor practice charge for the NLRB unreasonable not one of whether or not the privileges and immunities of this petitioner is violated.

It is our position that privileges and immunities has no place or no application in this particular situation.

Now, we say that for this reason.

It is my understanding that in order for that doctrine to come into play and to be an issue and in order for that Section of the Fourteenth Amendment to be violated, we first of all have to be dealing with a right of national citizenship.

Now, its our contention that we are dealing with a group of employees, a limited number of employees in this particular area and these employees must be persons that not only can go to the State Unemployment Compensation Board and file a claim for unemployment compensation but must also be at the same time and in the same position of being eligible or able to file an unfair labor practice charge with the National Labor Relations Board and have this charge processed.

Now, no right of national citizenship is involved.

The right or the — in order to qualify for both of these positions, first of all, the person must be an employee and insofar as the federal aspect of the situation is concerned, the person must be an employee of an employer engaged in an interstate commerce.

It has nothing to do with citizenship.

If this Court held that this rule was invalid because it violated the Privileges and Immunities Clause of the Fourteenth Amendment, you would be in effect holding that in order to first file an unfair labor practice charge within NLRB you would have to be a citizen of the United States of America and this is not the case nor was this result intended by Congress.

Therefore, we take the position at the outset that privileges and immunities is not involved in this case whatsoever.

And —

Abe Fortas:

Do you mean that if the particular privilege immunity — privilege or immunity is available to non-citizens as well as citizens then it doesn’t come, it says, ending of the clause, is that what you’re saying?

Glenn L. Greene, Jr.:

What I’m attempting to say is that you do not have to be a citizen in this particular instance to file or process a charge for the National Labor Relations Board.

Abe Fortas:

You mean it’s available to non-citizens —

Glenn L. Greene, Jr.:

That is correct.

Abe Fortas:

— and (Inaudible) citizens and therefore it’s not within the privileges and immunities clause.

Glenn L. Greene, Jr.:

That is correct.

Abe Fortas:

I see.

Abe Fortas:

(Inaudible)

Glenn L. Greene, Jr.:

Now secondly, the petitioner advances as a reason for striking down this ruling of the Florida Industrial Commission that it violates the Supremacy Clause and in support of this position, primarily relies upon two cases one is Davis against Elmira State Bank and the other one is Hill against Florida.

Now we think that the approach taken in these two cases even if the Supremacy Clause is involved here is not applicable and does not furnish any sufficient or adequate guidelines for determination that we must make here today.

The Elmira State Bank case involved a state statute and a federal statute that were in direct conflict as to what was to be done with the remaining assets of insolvent banks.

In other words, these two statutes ran head on and in Hill against Florida that involved a statute that imposed certain conditions upon labor organizations and business agents before they could decay on business within the State of Florida and this Court held there that the determination that was being made by the legislature and the penalties imposed such as a complete injunction against functioning as a labor organization altogether did violate the Supremacy Clause.

We do not think that we are faced with such a situation here today.

What — rather what we are faced with is the reasonableness of this rule.

This Court has held on a number of occasions that it’s only inquiry and it’s only purpose in reviewing such a case would be to determine the reasonableness of the rule advanced by the Unemployment Compensation Commission.

Now I think first of all we have to look at the reason that these statutes both federal and state were originally passed.

That’s my understanding that the purpose of this statutes which were passed back in 1935, 1936 in that particular area was to alleviate mass unemployment rather than come into play in a particular situation that we have or that we are faced with here today.

In other words, the reason for this legislation in our opinion is not present when we consider what the purpose of the rule of the Florida Board of Review or the reason behind that decision.

Now, this Court has had a number of occasions to review various rulings of industrial commissions.

Once such rule was reviewed in the Oregon case, which had been cited in both briefs here today, that case involved is a situation in Alaska where you have seasonal employees and these seasonal employees finished their work in 1939 then before the season started in 1940, and a collective bargaining agreement had not been negotiated.

There were some attempts to prove that an impasse had been reached in 1940.

And even if negotiations had continued it would not have been successful.

This Court held that the disqualification of these employees, these seasonal employees from receiving these benefits even though no collective bargaining agreement had been reached and even though there might have been an impasse reached in, future negotiations would not have been helpful anyway that this disqualification was not so unreasonable as to strike it down.

Secondly, as pointed out by Mr. Gottesman and this is the point that I think that it — that the petitioner has failed to get around and that is the fact that in all studies and I think with the approval of this Court, employment, unemployment compensation benefits will be denied where the employees are engaged in a strike situation.

Not true as Mr. Gottesman points out the employment — unemployment there is voluntary.

The employee for one reason or another has decided not to cross the picket line and come into work.

However, in this instance where the employee files an unfair labor practice charge, the employee also is contending that, “No, I am not unemployed.

I was discharged unlawfully and therefore I am entitled to my job back, reinstatement with full back pay”.

Now, there is a certain choice on the part of the employee in that situation and for the Florida Board of Review to determine that this creates a disqualifying labor dispute does not seem so unreasonable to the respondents.

In other words if unemployment compensation can be denied when an employee is striking and particularly if that employee is engaging in picketing and supporting a strike which has been held to be a First Amendment freedom then we feel that there is no basis and no reason for saying that when the employee voluntarily chooses to go before the National Labor Relations Board that also a labor dispute has been created.

Byron R. White:

Well, what about the other side of that coin, the — let’s assume we don’t agree with you in this case, are we also ruling on the strike case?

Glenn L. Greene, Jr.:

Also that is not an issue.

I am interjecting into the argument for comparing the purposes only but that —

Byron R. White:

Well, what the — let’s assume —

Glenn L. Greene, Jr.:

— that is issue is not here.

Byron R. White:

Let’s assume we disagreed with you in this case, why wouldn’t the argument cover the strike case?

Glenn L. Greene, Jr.:

Well I don’t think that —

Byron R. White:

Well, how can you really simply distinguish the strike case in this case.

Glenn L. Greene, Jr.:

All that’s —

Byron R. White:

You say — you’re arguing that you can.

You’re arguing that the strike situation supports your argument here, aren’t you?

Glenn L. Greene, Jr.:

No.

Well, what I am saying is that — what I intend to say is that the strike case necessarily encompasses this ruling rather than vice versa.

I don’t think that this situation —

Abe Fortas:

Well, what’s the —

Glenn L. Greene, Jr.:

— apply to reverse but I —

William J. Brennan, Jr.:

Well, how do you mean that?

Do you mean that if it’s proper for a state to deny compensation even though there’s a burden on the right to strike?

Glenn L. Greene, Jr.:

But I am —

William J. Brennan, Jr.:

Well, but then —

Glenn L. Greene, Jr.:

Which has been held to be freedom of speech.

William J. Brennan, Jr.:

If that’s alright, we can impose that.

If Florida constitutionally impose that burden on the right to strike —

Glenn L. Greene, Jr.:

When an employee (Voice Overlap) —

William J. Brennan, Jr.:

(Inaudible) or it may also —

Glenn L. Greene, Jr.:

— is engaging in freedom of speech activity then a fortiori, you can do it in this particular situation.

William J. Brennan, Jr.:

Even treating this as a petition for redress?

Glenn L. Greene, Jr.:

Right.

William J. Brennan, Jr.:

Of a fed — of grievance for violation of a federal right.

Glenn L. Greene, Jr.:

Right.

We do not think it is so unreasonable at this time to require the employee to make a judgment beside —

Byron R. White:

But if we disagree with you on this case — we disagree with you on this case and say that this is an unreasonable burden that then wouldn’t be a fortiori on the strike.

Glenn L. Greene, Jr.:

I don’t think so.

Byron R. White:

That’s this — you were just saying that the right to strike is a more egregious wording.

Glenn L. Greene, Jr.:

No I don’t think so.

Byron R. White:

Think what?

Glenn L. Greene, Jr.:

I think the policy and as I say — first of all, I don’t — I think the strike situation would encompass this situation but to reverse is not true.

Glenn L. Greene, Jr.:

Now, the policy insofar as I have been able to determine in support of the strike cases is that first of all the state wants to remain neutral and not to be involved in an active labor dispute.

Byron R. White:

Well, there may be a lot of differences but in terms of the federal issue that’s involved, is there really any difference, just in terms of the Supremacy Clause for example, purging on some federal clause or even on the — do you — or take the privilege of and immunity to control here.

(Inaudible) on a strike situation, I can think of a lot of differences like such as you’re talking about, is that right?

Glenn L. Greene, Jr.:

Well, I take the position that if you reverse the ruling as a part of Florida Board of Review in this case that the strike situation is not necessarily encompassed in that ruling.

Now, the reasons as I understand it —

William J. Brennan, Jr.:

Well, you’ve said it but why?

Glenn L. Greene, Jr.:

Well, let me go ahead with these reasons in support — in connection with the strike situation.

William J. Brennan, Jr.:

But certainly to the extent its constitutional for Florida to deny workmen’s compensation to do a strike, there is, is there not a burden on the right to strike?

And the right to strike is guaranteed with Section 7 of the National Labor Relations Board?

Glenn L. Greene, Jr.:

I don’t necessarily think that there is a particular burden on the right to strike.

I think that — well if there is, I don’t think it’s unreasonable.

The reasons behind the decisions in the strike cases is, as I understand them is that — first of all the state does not want to be put in the position of financing a labor dispute.

Secondly, the employer should not be put in the position in effect subsidize a dispute involving his particular business.

Now, I think going on to this particular review that the same reasons there are applicable here.

The employer is nevertheless put in the same position if he has to pay.

Secondly, I see no unreasonable requirement put up on the employee if he has to spend some time or some — I don’t — by that I don’t mean days or weeks but give some problem as to whether or not he in effect has a legitimate grievance before the Labor Board and if not then he can go to the state unemployment compensation.

I don’t think that the situation calls for this court to hand down a decision striking down a decision of the Florida Board of Rewiew which was in effect guarantee the empolyee in what the right to draw unemployment compensation and still go before the National Labor Relations Board and attack this discharge on the grounds of union activity.

I think that’s what it boils down to, the fact that the state can go against the employee and recoup whatever unemployment compensation benefits were gained by the employee.

There’s not necessarily at least in my opinion eliminate the problem still places an undo burden, we think on the employer and also as pointed out in the conclusion of our brief, it can lead to three separate cases of litigation.

A conflict between the state and the employee on unemployment compensation claim, a claim for back pay with the Federal government before the National Labor Relations Board and then in turn a suit by the state against the employee to recoup the unemployment compensation benefits if back pay is awarded by the Federal government.

And for these reasons, we do not feel that the petitioner have sustained the burden.

He has pointed out that there is a burden on the state to come forward and show a compelling atmosphere.

But there is not a burden on the state to do this until the petitioner has shown that there is some constitutional question raised by this decision of the Florida Board of Review and we do not feel that there is a submission — issue to be passed on by this Court.

Thank you.

Earl Warren:

Mr. Gottesman.

Michael H. Gottesman:

Thank you.

Mr. Chief Justice, may it please the Court.

I’m tempted to try it again where I probably shouldn’t tread which is the dilemma that Mr. Justice White has exposed.

Each of us argue one thing for this case and would like something else for the others that are afraid and don’t know quite how far to tread.

Obviously, we think, it was — I’ve indicated, we think the denial of unemployment compensation to strikers is also a violation of law or it is also unconstitutional I should say.

Michael H. Gottesman:

But I do think there is a difference and the question is different and I do think that it’s important to identify what the difference is because it really is not essential perhaps desirable for this Court to decide both questions at once.

And the difference as we see it is this, Florida has a general policy of not compensating involuntary — I’m sorry, voluntary unemployment.

Florida has a right it seems to us as a general rule to adopt a general construction or a general division of its unemployment compensation and only those who had a choice or who had no choice who are unemployed against their will shall receive unemployment compensation.

Byron R. White:

But that choice is in — but you never lest — I would say that that’s — is unconstitutional.

Michael H. Gottesman:

Yes, but it’s a different question.

The question we have here is the same as that in Sherbert versus Verner.

The difference is that here, Florida is making an exception from its own rules to reach this and that clearly we think is a reaching out to punish the exercise of constitutional right.

The question in the other case is whether Florida in applying its own general rule which is we won’t compensate voluntary absence, nonetheless, though it is a part of a general rule is so infringing upon a federally protected interest that in balancing the Florida’s general rule against the abrasion of the federal interest.

The balance should be struck in favor of the federal interest.

That issue really is the one that was involved in Sherbert versus Verner where the state had a general rule that those who did — would not accept available work would be disqualified from unemployment compensation but that rule wasn’t limited to or singled out for Sabbatarians, it was a general rule.

But nevertheless when they applied it to someone who could not take available work because it was work that occurred on a Saturday and she was Sabbatarian.

Though it was the application of a general rule, this Court struck it down.

And they struck it down because it said that the state interest involve were not sufficiently great.

Byron R. White:

Did you say that she thought Sherbert and Verner would reach the strike case?

Michael H. Gottesman:

I’m sorry, that it would?

Byron R. White:

Would reach the strike?

Michael H. Gottesman:

It raises the question of the same context.

The context of the application of a general state rule which everyone would concede is in most instances alright to — in a particular situation where to do so robs against the federal interest.

Whereas, what we have here is not the application of a general rule but the exception from a general rule for the sole purpose of reaching a federal interest which we think is in a sense an easier case.

Whereas I say we think Sherbert and Verner and the approach and the reasoning there may very well lead to the proposition that you cannot deny unemployment compensation to the striker.