National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America – Oral Argument – January 14, 1960 (Part 2)

Media for National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

Audio Transcription for Oral Argument – January 14, 1960 (Part 1) in National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

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Hugo L. Black:

Mr. Manoli, I was just about to ask you a question.

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

As I understand it, you say and maybe your advisory, the statute as now enacted would make what has been done — what was done here an unfair labor practice.

Dominick L. Manoli:

Yes sir.

Hugo L. Black:

And you have an order against them?

Dominick L. Manoli:

Yes sir.

Hugo L. Black:

What would happen that if you did there under Court of Appeals, what is the result, what are the consequences to the Government in this — is this – is this the only case?

Dominick L. Manoli:

Oh, no, no.

There are a number of cases Your Honor of this kind.

There are —

Hugo L. Black:

(Voice Overlap) —

Dominick L. Manoli:

— sir?

Hugo L. Black:

A number of cases where the judgments have already been rendered in cases of this kind?

Dominick L. Manoli:

Where the Board had issued orders.

Hugo L. Black:

The Board had issued orders?

Dominick L. Manoli:

And some of these cases are pending in the various Courts of Appeals and some of them of course, the Court of Appeals has enforced the Board’s order.

We have the Sullivan case from the Fourth Circuit is (Inaudible) and in others like this one here or the Second Circuit case that I referred to the Court of Appeals has set aside, has set aside those orders.

Hugo L. Black:

Now, you have the statutes — the statute now that covers it.

What I was interested in is what is the very importance of keeping those orders, it — it may be very important keeping those orders out, when you have a statute with that law is the same to that?

Dominick L. Manoli:

Well, Your Honor, I think it is important to determine the reach of the Board’s power under 8 (b) (1) (A) because the Board believes that — that the — the new — the new statute — the new amendments do not displace its powers under 8 (b) (1) (A) to reach picketing of this kind.

Hugo L. Black:

But if — if they are the same as I understood you to say, just what difference does that make?

Dominick L. Manoli:

In this particular case, it would have made not, but there are cases where it can make a considerable difference.

In the first place —

Hugo L. Black:

But what — what is the circumstance (Inaudible)

Dominick L. Manoli:

Yes, let me explain if I may.

The — this question here is part of a broader play and that is whether the union may use coercive economic weapons for the purpose of obtaining recognition, of obtaining recognition when it’s a minority or a stranger union.

Now, though these other coercive devices maybe such things as the blacklisting of the employer appeals to consumers to boycott him.

Now, the Board has held in the cases pending before this Court on petition for certiorari, the Board has held that 8 (b) (1) (A) reaches that kind of course.

Hugo L. Black:

Although we decide that in this case — those cases in this —

Dominick L. Manoli:

Pardon me?

Hugo L. Black:

But we decide those cases in this —

Dominick L. Manoli:

This case will go very far towards deciding those cases.

The decision of this case will go very far in deciding — in deciding those cases.

Hugo L. Black:

— well would the Government — does the Government get any advantage for as consequences are concerned, can it find unfair labor practice under circumstances, under 8 (b) (1) (A) if you should be sustained?

Dominick L. Manoli:

Yes.

Hugo L. Black:

That it cannot find unfair labor practice —

Dominick L. Manoli:

Yes.

Hugo L. Black:

— under the law as now —

Dominick L. Manoli:

That’s right.

It can.

Hugo L. Black:

And so, the result — what you are asking is they are not the equivalent?

Dominick L. Manoli:

No.

Not — not —

Hugo L. Black:

What you’re asking is that this be decided on the basis that would — would give you right to find an unfair labor practice under circumstances which Congress did not include and exempt.

Dominick L. Manoli:

Or would — either that 8 (b) (7) would not be practical to apply to a situation where it wouldn’t be practical to apply to it or situations where it didn’t apply at all.

Let me explain that.

Hugo L. Black:

Well, that doesn’t necessary.

Dominick L. Manoli:

Let me explain that if I may, Your Honor.

Now, as I’ve said, Section 8 (b) (7) makes it illegal to picket, to force or require recognition of the employers to join in three situations.

One, where the employer is lawfully recognizing another union, there of course, the picketing would be bad from its inception.

It would be legal.

We could move in with an injunction against that sort of picketing.

The second situation is where the — within 12 months of the Board election if there is a picketing or recognition or you get the employers to join within 12 months, there too we can move in.

But if the last section, Section 8 (b) (7) (C) I believe it is, which says that a — when –where either of these two situations that I’ve just described obtains — obtains, that the union may not picket for a period to exceed 30 days unless within those 30 days, there is a representation petition has been filed.

Now, con — it — it is possible that under that section, picketing may go on for 30 days or more whether it’s there’s a representation petition has been filed, but there maybe situations where the special circumstances of the situation may make it desirable and appropriate for the purpose of effectuating the statutory policies to move against picketing —

William J. Brennan, Jr.:

Well, Mr. Manoli.

Dominick L. Manoli:

— from its very inception.

William J. Brennan, Jr.:

The very picketing that we’re concern with here —

Dominick L. Manoli:

Yes, sir.

William J. Brennan, Jr.:

— were this be repeated by this very union for 30 days starting March would be reached by Subsection (c), isn’t it that —

Dominick L. Manoli:

It could go on and picket for 30 days —

William J. Brennan, Jr.:

Yes, right.

Dominick L. Manoli:

— provided that in those 30 days, there was a representation petition filed.

Now, under 8 (b) —

William J. Brennan, Jr.:

No, my point is —

Dominick L. Manoli:

Yes.

William J. Brennan, Jr.:

— if — if it the very the very Congress which (Inaudible) if it started to act and duplicate it starting March, it could be reached under this (Inaudible).

Dominick L. Manoli:

Within — it would have here — it would have 30 days within which the —

William J. Brennan, Jr.:

No, I appreciate — as I say, the (Inaudible) 30 days?

Dominick L. Manoli:

Well, here, they were within 12 months of the election.

They would have been reached under the second — under the second provision of 7 — Section 8 (b) (7).

William J. Brennan, Jr.:

Well, then, why — why should we decide this question which admittedly is reached by the amended facts?

Why should we wait until the other situation can come before us?

Dominick L. Manoli:

Well, Your Honor, if this statute, if Section 8 (b) (7) as the Board believes, merely supplement — well, if you’re suggesting that 8 (b) (7) displaces — displaces the Board’s power under 8 (b) (1) (A) —

William J. Brennan, Jr.:

That’s not what I’m suggesting though.

I’m suggesting of the fact situation here.

Dominick L. Manoli:

Yes.

William J. Brennan, Jr.:

That next time the Board confronted it —

Dominick L. Manoli:

Yes.

William J. Brennan, Jr.:

It has explicit statutory authority to deal with it.

Dominick L. Manoli:

But Your Honor, this union had violated the law, if we are correct in our reading of 8 (b) (1) (A) and it violates the law and we’re sustained in that view, then, we’re entitled to have this order enforced and that’s been set aside by the Court of Appeals.

William J. Brennan, Jr.:

The results then (Inaudible)

Dominick L. Manoli:

There are other cases that are pending.

There are at least — the Board itself has a dozen or more cases and there are number of cases pending in various Courts of Appeals.

William J. Brennan, Jr.:

Before the Board, it can be reached under the statute (Inaudible)

Dominick L. Manoli:

The — not unless, no.

Those charges were filed those under the old law.

William J. Brennan, Jr.:

(Inaudible)

Dominick L. Manoli:

“Well, there would have to be new charges under the new Act and of course, the picketing would have to be continuing in order to avoid the six months statute of limitations.

Potter Stewart:

Certiorari was granted in this case of course before the enactment of the new statute?

Dominick L. Manoli:

That’s right, sir.

That’s right.

Now, as I was — when the Court arose, I was addressing myself to the question of whether Congress by passing this new legislation has indicated at the Board did not have this power under 8 (b) (1) (A) to reach this kind of picketing.

I don’t believe — we don’t believe that Congress made that judgment —

Tom C. Clark:

Mr. Manoli, I don’t like the other (Inaudible).

One other thing I intended to ask you —

Dominick L. Manoli:

Yes, sir.

Tom C. Clark:

(Inaudible)

Dominick L. Manoli:

Yes, sir.

Tom C. Clark:

Were there any amendments of the provisions of them from the 1957 since the amendment of the statute?

Dominick L. Manoli:

No.

Tom C. Clark:

1958 and 1959 that would have grown as far as you say in the (Inaudible) us to the whole review here.

Dominick L. Manoli:

There were a number of —

Tom C. Clark:

And what action was taken on it?

Dominick L. Manoli:

There were a number of amendments and I’m not — not sufficient familiar Your Honor to answer that specific — that — that specific question.

The —

Tom C. Clark:

Maybe the other counsel?

Dominick L. Manoli:

Perhaps he can.

But I am not —

Tom C. Clark:

Were there some others offered?

Dominick L. Manoli:

Oh, there had been others offered over a number of years but they have been very extensive kind amendments reaching both organizational and the so-called recognition picketing.

Tom C. Clark:

I mean at the time — in 1959.

Dominick L. Manoli:

Yes.

Tom C. Clark:

When they passed what they did, did they reject something that could have gone further in your direction that —

Dominick L. Manoli:

No, no.

Tom C. Clark:

— the one they’ve had.

Dominick L. Manoli:

No.

As a matter fact, it didn’t go any far enough.

The Senate — the Senate had no provision in — in its bill — in the Kennedy-Ervin bill had no provision governing this sort of thing.

Then, the House Committee — the House Committee had a bill and it was criticized by — it was criticized as not going far enough —

Tom C. Clark:

It’s not going far enough in your direction?

Dominick L. Manoli:

In — not going far enough in — in dealing with —

Tom C. Clark:

But, was it — was it criticized because it didn’t go further than that one did to come approach (Inaudible) the position you take here now?

Dominick L. Manoli:

That’s — I don’t know whether the criticism was put in those terms, Your Honor.

Tom C. Clark:

But, I — I don’t mean the terms.

If it was an amendment also in which it passed —

Dominick L. Manoli:

Yes.

Tom C. Clark:

— would have made the unfair labor practice, given the right to find an unfair labor practice on a less state of facts than here than under the one there?

Dominick L. Manoli:

I have matter — I don’t know.

Tom C. Clark:

You don’t know?

Dominick L. Manoli:

I don’t.

Felix Frankfurter:

Isn’t the situation that if your claim and the new — the provision of the new Act that you read on the generality of condemnation of unfair labor practice by invoking the purposes of the Act regarding the free bargaining and the provision that the new Act makes is a specific dealing with the segment of their thought.

Dominick L. Manoli:

That’s right.

Now, the — I have said that — Mr. Justice Stewart I think suggested that at the time that these amendments were passed, there was no — the Court — I have suggested that there was no intention on the part of Congress to judge the Board’s power under 8 (b) (1) (A).

And the situation was this that two Courts of Appeals, the Fourth Circuit, and the Court of Appeals below — Court of Appeals below have reached in 50 answers on this and as Mr. Justice Stewart stated, he’s wrong with the very words of one of the dissenters.

The law was uncertain.

This Court had granted certiorari in — in this case and Congress did not attempt — was not attempting to determine this issue but is simply wanted to make sure that whatever the outcome of this litigation, the Board would have some power to deal with both organization and recognition picketing.

Now, further, the Board believes that Section 8 (b) (7) does not displace whatever authority — the authority which we claim that we have under 8 (b) (1) (A), but that its supplements and adds to it because 8 (b) (1) (A) as we read it, reaches only minority picketing.

William J. Brennan, Jr.:

(Inaudible)

Dominick L. Manoli:

It — I won’t know as —

William J. Brennan, Jr.:

It’s supplemental —

Dominick L. Manoli:

It supplements in this sense, Your Honor, that 8 (b) (7) (D) is not only with in picketing by a minority union for purposes of recognition, it deals with picketing by any kind of a union for purposes of either organization organizing the employers or for purposes of obtaining recognition.

Now, and the Board believes, the Board believes that this statute sought to preserve the Board’s power under 8 (b) (1) (A) to reach this kind of minority picketing and that this purpose is evidenced by the — by the Savings Clause of 8 (b) (7).

And the Savings Clause provides that this is on page 67 of our brief at the very bottom, nothing in this paragraph shall be construed to permit any act which would otherwise be an unfair labor practice under this Section 8 (b).

Now, the Board reads that certain sentence as ordered to mean that — that whatever power the Board have, under 8 (b) (1) (A), to deal with minority picketing is not displaced by this statute.

Now, finally, I want to turn to a statement that appears in the conference report on the 1959 amendments.

William J. Brennan, Jr.:

Were there any (Inaudible) to that effect?

Dominick L. Manoli:

No, there isn’t and I’m coming to the conference report Your Honor which is perhaps the only bit of history that we’ve got on this and that is the conference report on these amendments — this is as quoted at page 59 of our brief at the bottom.

The conference report had this sentence.

Section 8 (b) (7) overruled the Curtis and Alloy cases to the extent that those decisions are inconsistent with Section 8 (b) (7).

Dominick L. Manoli:

But if the Court please, the statute has itself as many ambiguities and I’m afraid this sentence is as much if not more ambiguous in the state — in the statute itself.

But, as we read this — this sentence and I’m not so sure if there is any other legislative history that you — that (Inaudible) or reading of it.

I will finish in just one moment Your Honor, as we read this — this statement, Congress — the conference report or Congress was simply saying the credit — the force of the — the Court of Appeals of the District of Columbia in accordance to the Ninth Circuit in the Alloy case have indicated the Board doesn’t have the power to deal with minority picketing under 8 (b) (1) (A) for purposes of recognition.

We are overruling those cases and I am now — and they’re supplying and they’re supplying whatever deficiencies they may have been but we’re not determining, we’re not determining whether or not the Board did or did not have the power to deal with this kind of picketing under Section 8 (b) (1) (A).

Thank you.

Earl Warren:

Mr. Thatcher.

Herbert S. Thatcher:

May it please the Court.

It’s the position of the Labor Board here but not of the Solicitor General as I understand his position from his plight of petitions of — to the petitions for certiorari in the Rubber Workers case, he believes that the new law, 8 (b) (7) or the new law disposes of this case and disposes —

Tom C. Clark:

What case is that?

Herbert S. Thatcher:

That’s the Rubber Workers case or Sullivan Hill, the number of which set forth in our — in our brief here I can get it —

Tom C. Clark:

(Inaudible)

Herbert S. Thatcher:

You would held up on that I think, no action in that case or in Alloy.

The Solicitor General has suggested that the new law dispose of all these cases, but it’s the position of the Board at least here —

Tom C. Clark:

How did he suggest what purpose (Inaudible)

Herbert S. Thatcher:

He specifically indicated that in Court that authority before a new law has passed which disposes of an issue pending before the Court that — and in a particular order before a Court that the Court had power or the Board would have power to so modify its order and to conform to — to the new law and then —

Felix Frankfurter:

He wanted it sent back?

Herbert S. Thatcher:

Pardon?

Felix Frankfurter:

He wanted the case is sent back to court —

Herbert S. Thatcher:

He wanted the cases sent as that, yes, Your Honor.

Hugo L. Black:

Mr. Thatcher would it — this range of kind of argument to state the question of whether or not the Congress in 1959 was asked to and rejected or accepted in any way broader powers of the Board than the amended case.

Herbert S. Thatcher:

Yes, it did, Your Honor.

There were legislative proposals in both the House and Senate which would have —

Hugo L. Black:

At that time?

Herbert S. Thatcher:

At — in 1959 during the discussions and during the proposals for a law dealing with recognition and organizational picketing by minority unions, the subject we have here, there were proposals and they’re set forth in our brief which would’ve gone farther — further than 8 (b) (7) now goes which would’ve been included for instance all picketing for recognition or for organizational purposes by any union, any union which represented less than 30% of an employer’s employees.

That, a particular additional restriction I remember was included in several bills.

Now, they made — may have been more.

Hugo L. Black:

But that has been —

Herbert S. Thatcher:

But that was proposed and rejected.

Hugo L. Black:

Would it have covered this —

Herbert S. Thatcher:

That would’ve covered it this —

Hugo L. Black:

(Inaudible)

Herbert S. Thatcher:

That would’ve covered the situation here in this case, Your Honor.

Charles E. Whittaker:

But would it have covered the case (Inaudible)

Herbert S. Thatcher:

It — Your Honor, it would have if that union as here represented less than 30% of the employer’s employees.

Charles E. Whittaker:

This act —

Herbert S. Thatcher:

Picketing the sort of proposal, proposal which exceeded what 8 (b) (7) did, yes.

This Act — this Act which was passed would have precluded or prohibited the picketing here had to go on for one hour because the picketing followed an election which the union had lost and this law proscribes picketing to secure recognition in the face of that circumstance.

Charles E. Whittaker:

7 does (Inaudible)

Herbert S. Thatcher:

7 does, Your Honor.

Charles E. Whittaker:

(Inaudible)

Herbert S. Thatcher:

B is set forth in the Board’s brief page 67, subsection (b) where it was in appreciating 12 months the ballot election under 9 (c) had been conducted.

Reading that was — was the substantive language in 7 where it means unlawful to picket specifically for purposes of recognition.

So, clearly, the picketing here would’ve been — could’ve been enjoined within one hour after it commenced.

Charles E. Whittaker:

(Inaudible)

Herbert S. Thatcher:

That is right, Your Honor.

Charles E. Whittaker:

(Inaudible)

Herbert S. Thatcher:

No.

It’s — it’s prohibited in three specific areas and they’re rather broad areas.

The first is where the — the employer is recognizing or dealing with the union whether it is certified or not that it has a right to deal with, but it already had a contract for instance even though that union hasn’t been certified.

In that case, picketing is instantly enjoinable.

Then the second instance is where there has been an election within the previous 12 months.

There picketing can be instantly enjoined.

Charles E. Whittaker:

That’s (B).

Herbert S. Thatcher:

That’s (B) and third, (C), in where those two situations don’t exist which often happen, then, picketing can go on for a reasonable period not to exceed 30 days.

The case was decided three — three or four days ago in the District Court up in Connecticut where picketing was enjoined after, it’s been 12 or 15 days of the — and no petition had even filed.

So, the courts already are reading this to perhaps prohibit picketing within a period much less than 30 days, even (C).

Felix Frankfurter:

Mr. Thatcher, the amendment which you say was proposed and rejected it would’ve allowed what you call an injunction and order if it lasted only an hour or a day, is that right?

Herbert S. Thatcher:

No.

The — the injunction could’ve been obtained within an hour after picketing started, that’s what I meant to say.

Felix Frankfurter:

Oh!

Felix Frankfurter:

No matter how short the period of picketing —

Herbert S. Thatcher:

Yes.

Under (A) and (B) of the present statute no matter how short the picketing may have been carried on, one hour is sufficient time for the picketing to have been carried on, and then the Board can go into Court and get an injunction.

Felix Frankfurter:

Yes.

But the statute as I understand you, the statute would’ve made no limitation such as it now makes, is that right, such is made on the (Inaudible)

Herbert S. Thatcher:

Well —

Felix Frankfurter:

(Inaudible)

Herbert S. Thatcher:

Well, that was one of the proposals.

There was a further proposal from that which would instantly have prohibited picketing.

And then, in any situation where the union did not represent more than 30%, is that what Your Honor —

Felix Frankfurter:

It — if it lasted only a few minutes, you could’ve rush before the Board under the mandate of the statute it didn’t put any conduit, is that right?

Herbert S. Thatcher:

Yes, Your Honor.

Felix Frankfurter:

Now, what I want to ask you is whether now, the complaint under — under what the Board now is urging, the — a written discretion regarding the length and nature of the picketing that was (Inaudible) the counsel to take notice of and bring by way of complaint for the Board, is that right?

Herbert S. Thatcher:

Is this meant to —

Felix Frankfurter:

It’s the statute is mandatory because it doesn’t say — I mean, unfair labor practice and they have to decide whether —

Herbert S. Thatcher:

The Board is required or the general counsel for the Board is required to go onto Court to seek an injunction and he can do that within minutes after the picketing has started.

So, that that —

Felix Frankfurter:

Do you mean, now?

Herbert S. Thatcher:

Now.

Felix Frankfurter:

Under 8 (b) (7) contention?

Herbert S. Thatcher:

Now, under 8 (c).

Under 7 —

Felix Frankfurter:

I’m not talking about 7 (c).

I’m talking about — forget 7 (c).

Herbert S. Thatcher:

Oh.

Felix Frankfurter:

Under the — under the legal view of the Board here —

Herbert S. Thatcher:

Or 8 (b) (1) (A).

Felix Frankfurter:

8 (b) (1) (A), the general counsel has discretion what complaint he will file before the Board.

Herbert S. Thatcher:

That would’ve been discretionary Your Honor, yes.

Felix Frankfurter:

That would’ve.

Herbert S. Thatcher:

That would’ve been.

Felix Frankfurter:

Now, if the amendment which was rejected as such, wouldn’t it?

Herbert S. Thatcher:

No, it would’ve not been.

Felix Frankfurter:

Alright.

Herbert S. Thatcher:

There’s that difference?

Felix Frankfurter:

So, you got that —

Herbert S. Thatcher:

They do have that.

Felix Frankfurter:

There’s also a provision that nothing in paragraph (C) shall be construed to permit any act which would otherwise be an unfair labor practice.

So, that might imply, at least my reading of it implies that there must be act which is otherwise be an unfair labor practices, although, this had — the order makes it an unfair labor practice.

Herbert S. Thatcher:

That’s maybe correct Your Honor.

There is this an interesting better informal post legislative history in the form of an address by Professor Cox who was the adviser to Senator Kennedy through out this at the University of Minnesota I think it is which we have set forth in our brief and in which he states that there had been a statement prepared but was distributed too late which indicated the precise meaning of this last proviso which you just read as meaning that it — that it protects only the 8 (b) (4) sections of the Act from possible misconstruction by virtue of the enactment of many words in 8 (b) (7) and in which it was expressly stated that it was meant by 8 (b) (7) to dispose completely of the litigation in Curtis, Alloy and other cases.

Felix Frankfurter:

Are we not going to include among legislative history the speech by somebody whom I respect gratefully apart from the fact that he is been student of mine, are we going to include among legislative practice or the speech made by Professor Cox months later including the statement of (Inaudible) need an ample time I think on the floor and ask some of these statements made by Senator Walsh which he did argue senatorial sponsor to reply to it.

Are we going to include that on the legislative history?

Herbert S. Thatcher:

I — I set that part from the brief Your Honor only to indicate the reasonableness of — of our argument and position that in —

Hugo L. Black:

That might — that might be the reason that sometimes to say that in any other things which we don’t have something else of that specific plan.

Herbert S. Thatcher:

Right.

We suggest that the same —

Felix Frankfurter:

I was wondering whether that’s part of the legislative history and you (Inaudible) —

Herbert S. Thatcher:

I —

Felix Frankfurter:

— great reporting of the — report of the legislative adviser (Inaudible) attempt.

Are we going that far (Voice Overlap) —

Herbert S. Thatcher:

I — it — it certainly is not formal legislative history.

It’s not part of the congressional — it’s informal legislative history.

William J. Brennan, Jr.:

But would that (Inaudible) and this is from the House Report as I understand it, the statement of the managers on the part of the House, Section 8 (b) (7) overruled the Curtis and Alloy cases to the extent that these decisions were inconsistent to sections of law.

Herbert S. Thatcher:

In the first place, it doesn’t indicate whether they mean the Board’s position and the Board’s position is being overruled or the Court’s decision in those cases which is contrary to the Board’s position which is overruled.

What I think they’ve meant is that, regardless of what it –the Board have held — what the Court have held, those decisions were overruled and this is now the law that Curtis and Alloy are now things of the past and that we now have before us 8 (b) (7) and that is determinative, that’s our position here.

William J. Brennan, Jr.:

Okay.

Herbert S. Thatcher:

Proceeding, just to restate now the Board’s position, so the real extent to which it does go that notwithstanding Section 8 (b) (4) (C) of the Act which deals specifically with recognition picketing, but in a very limited way and notwithstanding, 10 solid years of legislative effort every year in Congress to enlarge 8 (b) (4) (C) to include the type of picketing we have in this case and notwithstanding the fact that in 1959 after discussing the same up and down and back and forth for months in Congress last summer, last Spring, Congress did finally draw the line that seems — thought should be drawn, the Board states not that it had this authority all along.

In fact, all of these that it had, this authority but it had even broader authority.

I think the error of the Board’s position is implicit in its own very statement and can be shown within the four corners of the Act itself about resorting to much legislative history.

Herbert S. Thatcher:

First, Section 13 had to be paid a great deal of attention to.

This State strikes and picketing which is equated with strikes by this Court in the Rice Milling case and specifically by other circuits under 13.

It states that picketing or strikes can be proscribed only if it specifically provided for another sections of the Act.

Section 8 (b) (1) (A) certainly does not by its terms specifically proscribe any concerted activity such as those for instance Section 8 (b) (4) which can be said to be a specific prohibition of picketing or striking, because it deals specifically with striking and picketing as such.

The Section merely states in a general way that it’s an unfair practice to restrain or coerce — restrain or coerce employees in the exercise of rights set forth in Section 7.

Now, for nine solid years, the Board held that the reach and the scope of Section 8 (b) (1) (A) was not to interdict or — or condemn within the phrase coerce any aspects of peaceful striking or picketing.

Perry-Norville, the NMUK decided before Perry-Norville and six cases decided after that time between the time of that first decision and now, all held specifically that regardless of how illegal the object might be, the object of union’s activities to get a closed shop for instance although a closed shop was proscribed by the Act or other directly admittedly illegal objectives, nevertheless, picketing to secure those objectives could not be indicted or proscribed under Section 8 (b) (1) (A) because peaceful picketing could not be deemed and was never thought to be included within the term coercion.

Now, for the first time, the Board argues — argues flatly that because picketing has — which we all admit, picketing has the effect of attempting to reach an employer economically and the Board then says that that may reach the employees indirectly in their economic position that the employer loses business.

They might suffer — in their employment conditions that by that indirect means, there has been a accomplished a coercion within the meaning of the term coerce as set forth in Section 8 (b) (1) (A).

Well, that was —

Charles E. Whittaker:

(Inaudible) what possible purpose of the picketing is struck (Inaudible)?

Herbert S. Thatcher:

I’ll dwell on that at — at a little more length later.

I’ll answer you very briefly now though Your Honor.

A readymade and a very traditional objective of union — unions generally is reached by attempt by minority unions to achieve recognition and indeed, a contract with unorganized employers namely, extending the scope of organization beyond the single shop or extending the scope of organizations — of organizations and try to bargaining to reach all the shops within an industry or within an area as a means of eliminating the competition from the — the wage — capital — wage competition from the unorganized shops.

Since the beginning of trade union history, that’s been an objective, there has been picketing carried on to that end by minority unions since the beginning of trade union history, this Court has protected it, the Norris-LaGuardia Act has protected it, the Wagner Act protected it, this Act protects it as I will show later and that is the objective and the — the matter which unions seek to achieve when they engage in this minority picketing.

That is — is what — that is the portion of the Section 7 rights.

Section 7 goes both to union people and nonunion people.

That is of course in the Section 7 rights which is we think protected or preserved in the Act for unions.

There maybe other matters in the — in Section 7 of — of — for the nonunion employers such as the right to engage in strike making such activities, but they are certainly at least are correlative rights and we think if Congress wanted to outlaw that traditional right, they would’ve not done so by a vague, ambiguous, broad sweep of an 8 (b) (1) (A), they would’ve gone after it directly as they finally have an 8 (b) (7).

Charles E. Whittaker:

But assuming (Inaudible)

Herbert S. Thatcher:

That is right, Your Honor.

Charles E. Whittaker:

How is the need to continue as before and (Inaudible) that the union insisted that the employee become members of the union?

Herbert S. Thatcher:

That is right, Your Honor.

Charles E. Whittaker:

Was there any purpose saying (Inaudible) must require to enforce these to become members of the union.

Herbert S. Thatcher:

Yes, Your Honor.

In addition to the general objective that I just stated which I think is an extremely important one, there was this further objective.

The union had won an election in that plant and it wanted rather substantially to engage in bargaining.

Bargaining collapsed on certain issues.

A strike was engaged in.

The strikers were replaced by nonstrikers.

Herbert S. Thatcher:

The nonstrikers or the employer, not that the nonstrikers, the employer at that time called for an election when the people rather on strike as it had the right to do on a much criticized section of this Act.

That election obviously was lost.

Does the union thereby lose its right to protest or to seek to achieve what it thinks necessary to preserve conditions in the city?

We think not.

Earl Warren:

Mr. Thatcher, I wonder if I heard correctly, I understood Mr. Manoli to say that the Perry-Norville case was the only case in — in which the Board maintained — sustained the position that you now advocate here and I thought I understood you to say that there were some six cases following the Perry-Norville case?

Herbert S. Thatcher:

Well, there are some six cases and we can supply them which held this principle.

Earl Warren:

Yes.

Herbert S. Thatcher:

And it went all the way up to just before the decision in this case which upheld the principle that 8 (b) (1) (A) does not reach peaceful picketing no matter what the objective of the picketing might be, whether admittedly or in the illegal objective including —

Earl Warren:

Yes.

Herbert S. Thatcher:

— in some cases picketing by a minority unions —

Earl Warren:

Yes.

Is that —

Herbert S. Thatcher:

The minority union is present in Perry-Norville and I think in one or two or the other.

I’m not — I can assure that, but the basic principle at least upon which the Board relies here namely that 8 (b) (1) (A) can include peaceful picketing as coercive when the purpose of the picketing is to achieve an unlawful objective, that principle, that’s the basic principle here, that has been flatly denied in at least state board decisions running all up to the time of the decision here.

Earl Warren:

Are those in your brief?

Herbert S. Thatcher:

No.

They — actually Your Honor, I’ll be glad to supply them following that.

Earl Warren:

Would — would you?

And of course Mr. Manoli if you have any counter opinions, you may cite those.

Dominick L. Manoli:

Thank you.

Herbert S. Thatcher:

Now, as Mr. Manoli indicated the legislative history of Section 8 (b) (1) (A) is the — you can point the statements either way, we think the later legislative history following the statements by Mr. — by Senator Taft has reported here which occurred prior to the time that the words interfere with were taken out of 8 (b) (1) (A).

8 (b) (1) (A) is originally proposed and it was only in the Senate that it was debated and prepared in the House.

8 (b) (1) (A) as it originally arose said that there is an awful interfere with restrain or coerce.

And Senator Taft was speaking about this — what he was speaking there at that time then interfered with — the word “interfere” was taken out and after that, you’ll find the debates much more limited and the fact that Senator Taft itself speaks about people can now — can patrol carrying signs and it can now seek to organize by any peaceful means.

He makes that by statement too.

But, the legislative history as set forth at length in our brief and I don’t think any thing that will be gained by discussing it here further.

I — I think so that we take 8 (b) (A) — 8 (b) (1) (A) read with the prohibition in Section 13 that the Act can’t — that broad phases in the Act can’t be read to proscribe picketing that proscriptions have to be flatly stated or specifically set forth in the Act.

If you read those two together, I think there alone, we have an answer to the Board’s entire argument here but —

Charles E. Whittaker:

(Inaudible)

Herbert S. Thatcher:

You’re — you’re right Your Honor.

Herbert S. Thatcher:

The Section 13 speaks only of strikes — striking.

But —

Charles E. Whittaker:

Yes.

Indeed the right to strike.

Herbert S. Thatcher:

That is right, Your Honor, but this Court had a case at length to consider Section 13 on its application in the Rice Milling case, that’s set forth in our brief here.

That case involved a — a situation were picketing alone was involved, picketing of a plant which was not organized or where — where none of the employees were on strike, not a single one was on strike and this Court protected that picketing within using Section 13 as the means of protecting that picketing.

There are other Circuit Court decisions set forth in our brief here, in which the Courts have held one is the Campbell (Inaudible) in the Court of Appeals law here in which the Court have held that picketing as such is directly embraced within Section 13 of the Act.

The Board was held so within the term “striking” in Section 13 of the Act.

The Board was held so in many decisions and I don’t — and they haven’t controverted that proposition in the brief here and I don’t understand until now.

Charles E. Whittaker:

Well, I understand that no (Inaudible)

Herbert S. Thatcher:

Well, when the trouble first arose, they represented all of them.

Nine went out on strike —

Charles E. Whittaker:

(Inaudible)

Herbert S. Thatcher:

That is right, Your Honor.

Charles E. Whittaker:

Not a simple striking power?

Herbert S. Thatcher:

Well, there is a continuing strike.

There was a — the strike which gave rise to this whole trouble and which resulted in the replacement of the strikers and then the following election, that was the continuing strike.

They never stop picketing pursuant to that strike.

We have the strike here at all times.

Even if we have only one — one man still left, there’s still a strike and they still were seeking to — to get their contracts which they never did get following the certification.

So we have a strike, but it’s — it’s clear that picketing is — can be equated with striking under Section 13 and the Board doesn’t controvert that here.

But —

Charles E. Whittaker:

Who is —

Herbert S. Thatcher:

I think that the — the key to this whole litigation and the key to this case is Section 8 (b) (4) (C) and then even more strongly Section 8 (b) (7).

In 8 (b) (4) (C), Congress have before it the specific subject of picketing by minorities or by unions for recognition.

And at — at the first proposal broadly prohibited all picketing for recognition unless the union had a certification and the debate from the proposal ran the whole gamut up and down from the most extreme and finally, after much debate, Congress came out with 8 (b) (4) (C) which restricted recognition picketing only in a very narrow area.

Hugo L. Black:

What — what Act was that?

Herbert S. Thatcher:

Well, that’s set forth in our — our brief.

Hugo L. Black:

Well, I mean the —

Herbert S. Thatcher:

The proposal of which sought to —

Hugo L. Black:

The Act that — the Act of this (Inaudible), is that the one with those too much controversy —

Herbert S. Thatcher:

8 (b) (4) (C) was the original Taft-Hartley Act in 1947 in which there was —

Hugo L. Black:

But I’m talking about the 1959.

Herbert S. Thatcher:

That 8 (b) (4) (C) — that 8 (b) (7) that —

Hugo L. Black:

What Act was that?

Was that the Landrum-Griffin Bill?

Herbert S. Thatcher:

Well, I’m coming to that later.

I’ll give you a legislative history on that shortly.

Hugo L. Black:

I don’t care about legislative history, I’m interested to know if that’s the Act.

Herbert S. Thatcher:

That’s the Act.

The Landrum-Griffin Bill was the Bill in the House and there were various versions in this Senate starting with the Kennedy-Erwin Bill and then we finally came up with 8 (b) (7), there.

As I indicated earlier, there were, after 8 (b) (C) was enacted, there were nine solid years, each year of which there were attempts in Congress to expand 8 (b) (4) (C) to include all types of minority picketing, each time these proposals were rejected.

We have a joint Committee Report a portion of which — in which Senator Taft was a member of that Committee.

Senator Ball, other Senators who took leading part in the debates were members of that Joint Committee and that Joint Committee flatly stated that that is in addition to what Mr. Manoli read, finally stated this the Taft-Hartley laws, I reading at page 36 of my brief, the Taft-Hartley law’s only limitation upon minority of such strikes, minority strikes they were talking about is that provided by Section 8 (b) (4) (C).

The right to strike of recognition is only foreclosed when another union has been certified.

And it goes on to say that the union can strike recognition the day after it loses an election.

That’s the Joint Committee that Senator Taft, that Senator Ball’s view, the people that proposed and got passed Section 8 (b) (1) (A).

And they didn’t put it on the basis of Board’s decision.

That is what they regarded the law as standing for it.

There is no doubt about that.

Then — then we come now — then in 1958, there was a — an even more strenuous effort to get the legislation and appeal of recognition picketing and we set that forth at some length in our brief, but all of those proposals were rejected finally in 1958, including the very 8 (b) — the Section 8 (b) (7) which finally was enacted in 1959 and efforts were continued to 1959 and again, the proposals run a whole gamut of prohibition and after a long debate, much controversy, and much discussion, Congress finally came out with Section 8 (b) (4) with — with Section 8 (b) (7) which — that means, anything that needed the Congress to take in the matter in hand after much study as set what it thinks are the proper boundaries.

It thinks now that after there has been an election, union should not take a bet now to the law.

But Congress did so by direct language of proscription.

It regarded Section 13, it — it took a counter Section 13 and in proscribing recognition picketing did so by very precise language and it did so in the very areas that are involved in this case.

We think that’s determinative of this litigation.

There is a very recent — there is only one decision since the passage of the 1959 law which takes up — which discusses the effect of the 1959 law on the Board’s position in this case namely that 8 (b) (1) (A) also can be used to — to enjoin minority picketing.

And the Second Circuit’s, it’s the Board versus Teamsters Local 182, case is decided November 27, not reported yet except in L.R.R.M. and we’ve got the citation in our brief, the Court unanimously rejected the Board’s reasoning here and said, of course, Congress has taken this matter in hand and — but it — it is now enacted and this is the law and 8 (b) (1) (A) cannot be used to permit the Board to have a (Inaudible) commission to — to deal with other unregulated areas of recognition picketing.

(Inaudible)

Herbert S. Thatcher:

Pardon?

(Inaudible)

Herbert S. Thatcher:

It’s in our brief I have in here.

It’s — it’s unreported — it’s a step — it’s reported in 45 L.R.R.M. —

Hugo L. Black:

What’s the name of the —

Herbert S. Thatcher:

It’s N.L.R.B. versus Teamsters Local 182, Second Circuit, Justices Clark, Moore and Smith unanimous decision, 45 L.R.R.M. 2205.

(Inaudible)

Herbert S. Thatcher:

45 L.R.R.M. 2205, set forth on page 54 in filing of our brief.

Now — now, coming out of the answer to some of the Board’s contentions here on the policy — in the policy area namely that we’re seeking to interfere with employees’ rights not to join unions and we’re seeking to reply our employers to commit unfair practices.

But to answer that, we’ve got to go back a little — a little — to earlier decisions of this Court and to other enactments in the field of federal legislation in the field of labor relations, bearing in mind the administrative court in U.S. versus Hutchinson.

Perhaps, we have to consider all of these federal laws in the labor field of the comprehensive code to see this what — how the Congress considers and regards the various rights that are asserted from time to time.

As I indicated in an answer to a question from Mr. Justice Whittaker, it is traditionally since the beginning of trade union history than the customer practice of unions to seek to extend organization beyond the single shot.

To seek to get all within an all industries, all trades, all shops, within an area organized to prevent the – the wage competition from the nonunion shop, the wage competition for the nonunion shop.

That principle has been upheld by this Court in the American Steel Foundries case Chief Justice when Mr. Taft was Chief Justice.

In the Apex case, Justice — Mr. Chief Justice Roberts both dealing with Antitrust, Sherman Act and Clayton Act attempts to — to prevent unions from picketing by — in — in — the minority situations that we have here and the Court — this Court expressed its understanding of the principle of attempting to spread organization by minority picketing.

In a Swing case, this Court expressed similar views in connection by the free speech considerations.

The Norris-LaGuardia Act, Section 104 and Section 113 (e) specifically protects minority picketing for recognition from the injunction process at least.

And in this connection, we refer the Court to the Fur Workers case, we have it cited in our brief, affirmed here where there was minority picketing and on that premise alone, an injunction was sought and no minority picketing for recognition and the Court denied it.

And then in these same Sections to the Norris-LaGuardia Act which protected as against injunctions, the past picketing we had — we had here before the 1959 amendments were carried on to the both the Wagner Act and to the Taft-Hartley Act.

Felix Frankfurter:

If the statute in this argument that I’m about to sustain comment on it bears directly on our problem, but there is no contradiction between things that the effort is suggesting to organize the whole (Inaudible) and this unit of it in order to — you have to get this unit also here in order accomplish what you say is one of the purposes and that by doing that you also get recognition if you can get to organize that shop or that factory, then, there will be majority in the strike and they also have increase the range of the union’s domain.

Herbert S. Thatcher:

That is right.

Felix Frankfurter:

You explain two things up with —

Herbert S. Thatcher:

Well, I’m —

Felix Frankfurter:

Use together.

I mean, just to the matter of investigative fact, I don’t see what’s the — what would be the argument?

Herbert S. Thatcher:

Well, the argument is that the Board was —

Felix Frankfurter:

That is what the argument is but I don’t think that’s the relevance here.

I’m saying of course, it has two purpose namely to — to organize that shop and thereby, you increase the rate of the —

Herbert S. Thatcher:

But — that’s right.

But these rights which are recognized by the Congress, have been recognized by this Court.

And I think of Congress before 1959 and 1947, Congress wanted to — also that right or restrict it in any way would done so by direct language.

Felix Frankfurter:

The answer of that is part of the argument.

Felix Frankfurter:

I just don’t see why you don’t say why a court (Inaudible)

Herbert S. Thatcher:

That’s what I — but of course we (Inaudible)

Felix Frankfurter:

(Inaudible)

Herbert S. Thatcher:

I — I don’t mean — I don’t needed to deny that for a minute.

Felix Frankfurter:

Alright.

Herbert S. Thatcher:

Of course, I think it was to get recognition and a contract.

Felix Frankfurter:

I know, but you’re arguing either (Inaudible)

Charles E. Whittaker:

Mr. Thatcher, may you lawfully do that by coercing the employees?

Herbert S. Thatcher:

That depends on whether coercion, the term coercion as used in 8 (b) (1) (A) can be said or read to include peaceful picketing.

Up to this case, it never has been — Congress never — up until 1959, never considered peaceful picketing as being coercive or admittedly has — it brings economic pressure on employer and then maybe on employees and the Board for nine solid years specifically held that picketing cannot — peaceful picketing cannot be held to the coercion.

That all of it was embraced within the term “coercion” was physical violence, mass picketing, beating, things like that.

And the legislative history is replete — is very illuminating on that aspect also Your Honor.

Charles E. Whittaker:

(Inaudible)

Herbert S. Thatcher:

I argue this Your Honor that within the meaning of the term “coerced” as used in Section 8 (b) (1) (A) that takes violence in fact or threat of violence in the fact or some means of direct retaliation against an employer — against union — against nonunion people or employees something other and in addition and involving some more element of intimidation than peaceful picketing.

Peaceful picketing has never in the long history of litigation on this subject and been considered per se coercive and that in the intimidatory sense.

It has been recognized as having consequences, economic consequences in bringing pressures, yes.

Charles E. Whittaker:

(Inaudible) to take these employees in the union.

Herbert S. Thatcher:

That is right.

But if — again, 8 (b) (1) (A) was not concerned with purposes.

It was concerned with means, not purposes.

It was concern primarily with – -with means of interference and purposes of strikes and so on were directly on 8 (b) (4) where objectives were spelled out as being unlawful and where striking was spelled out.

Picketing was spelled out as being dealt with unlike the situation on Section 8 (b) (1) (A).

Now, the — the only reason I am reciting all this Norris-LaGuardia Act in the history and to carry on of those protection during the Wagner Act and Taft-Hartley is to show that Congress did consider minority picketing a protected activity and certainly, at the very least, if it up until that time, up to the time of Taft-Hartley, the very least it would’ve done if it didn’t want to consider protected anymore would be to out — outlaw it specifically and that it did not do.

And it did not do that until 1959 when it did it at great length in Section 8 (b) (7).

There are two other factors in conclusion which would acquire any court to go slow and broadly extending 8 (b) (1) (A).

In addition to Section 13, we had Section 8 (C) of the Act which protects the right of peaceful picketing under the Act unless specifically proscribed.

Again picketing which is an aspect to free speech is not specifically proscribed under Section 8 (b) (1) (A) and finally, we have the overall considerations stressed so strongly by this Court in the Hot Cargo case that the (Inaudible) American Iron cases which is that since Taft-Hartley is the product of better compromise, better argument in which strongly contending forces were pressing for their various positions, the Court should go extremely slow and should be extremely reluctant to extend the scope of the Act merely by construction and were not clearly commanded by expressed language.

We have no such express language in Section 8 (b) (1) (A).

Thank you, Your Honor.