National Labor Relations Board v. Nash-Finch Company

PETITIONER:National Labor Relations Board
RESPONDENT:Nash-Finch Company
LOCATION:Illinois State Penitentiary at Menard, Illinois

DOCKET NO.: 70-93
DECIDED BY: Burger Court (1971-1972)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 404 US 138 (1971)
ARGUED: Oct 19, 1971
DECIDED: Dec 08, 1971

ADVOCATES:
Lawrence G. Wallace – argued the cause for petitioner
Solomon I. Hirsh
William A. Harding – for respondent, pro hac vice, by special leave of Court

Facts of the case

Question

Audio Transcription for Oral Argument – October 19, 1971 in National Labor Relations Board v. Nash-Finch Company

Warren E. Burger:

We will hear arguments next in number 93, National Labor Relations Board against the Nash-Finch Company.

Mr. Wallace you may proceed whenever you are ready.

Lawrence G. Wallace:

Mr. Chief Justice and may it please the Court.

In this case the District Court on jurisdictional grounds dismissed the complaint filed by the National Labor Relations Board and denied the Board’s motion for a preliminary injunction.

The Court of Appeals affirmed the judgment in all respects.

There is no decision here on the merits of the Board’s claim and there has been no findings of fact on which a decision on the merits would ordinarily be predicated.

The decision was made is on the complaint and on the motion for the injunction.

The complaint is set forth beginning at page Four of the Appendix.

In it the Board recites that unfair labor practice charges had been filed with the Board by the union which is appearing here as amicus, the amount to made Meat Cutters Union against the respondent Company that on the basis of this charge, a trial examiner of the Board had found that the Company had violated the National Labor Relations Act in several respects by wrongfully refusing to bargain with the Union and by committing another unfair Labor practices relating to the union’s organizational campaign.

I should say incidentally that after the present suit was filed as the briefs point out, the Board in ruling on the company’s exceptions disagreed with the hearing examiner, concerning their refusal to bargain and held that the Board — that the Union had not established majority status, but the Board did agree that the Company had committed certain and other unfair Labor practices and issued a cease and desist order for which the company has complied and there is no question here about enforcement of the Board’s order.

The complaint further recited that approximately one month after the issuance of the hearing examiner’s decision, employees of the company began to picket the Company stores and the Company ran into the State Court and obtained an injunction against the picketing.

The copy of the injunction was amended as an exhibit to the board’s complaint.

Potter Stewart:

The issue in this case does not, resolution of the issue in this case at least in your submission does not really depend at all on the ultimate outcome of anything in the Board’s administrative proceeding, does it?

Lawrence G. Wallace:

That is correct, Your Honor.

This is strictly a question of whether there is jurisdiction in the District Court to hear the Board’s complaint for an injunction against enforcement of the State Court’s injunction by the Company.

Potter Stewart:

Then you say that merits even on the –unlike for injunction or not, have not been litigated and not before us?

Lawrence G. Wallace:

That is our —

Potter Stewart:

Usual questions?

Lawrence G. Wallace:

That we have asked to have the case remanded for a hearing on the merits of the Board’s complaint.

Well, only the jurisdictional question has been decided below.

We do not think the case is ripe for adjudication on the merits whether the injunction should issue; there has been no factual finding.

Byron R. White:

Mr. Wallace, would the hearing in the District Court which you suggest merely go to whether or not the activities that have been enjoined are arguably protected or would you say the District Court could decide then and there, whether they are actually were protected or not?

Lawrence G. Wallace:

Well, that question is very closely related to the question that divided court in the Ariadne case in 397 U.S.

Byron R. White:

(Voice Overlap) for you.

Lawrence G. Wallace:

Under the complaint in accordance with the majority opinion Ariadne.

The compliant was put in terms of the activities being arguably protected or arguably prohibited.

Byron R. White:

So that they — if your position is this that it were arguably protected the District Court should enjoin the (Inaudible)?

Lawrence G. Wallace:

Well, we understand that to be the law under guidance and related cases through Ariadne.

Byron R. White:

Even though there is no way of getting the issue before the Court is to whether it is actually protected?

Lawrence G. Wallace:

Well that is what we understand the law should be Mr. Justice.

Lawrence G. Wallace:

And there is no occasion at this stage, that the present case to reach that issue because under either view taken in Ariadne, we think saying this position would be appropriate here.

Now, in a prayer for relief the Board was quite specific in stating that it wished to have enjoin the enforcement of those portions of the State Court injunction that were within the preempted area in the board’s view and those portions are more specifically set out in the Board’s motion for a preliminary injunction which is set forth in the appendix on pages 33 and 34 of our appendix.

There is quotation or portions of the injunction which the Board seeks to have the enforcement of enjoined and there are several ellipsis in the quoted portions numbered one, two and three.

The first occurred at the beginning of the Part Two and then some parts A and B of part two are omitted and then there is another ellipsis in part three.

These ellipsis are those Parts of the order referring to the blocking of egress or ingress to the premises of the company to interference with the flow of traffic or the stationing of more than two pickets at anyone store owned by the company.

So there has been no attempt here to oust the State Court of jurisdiction, like you are entirely supersede the State Court’s injunction and no where in the prior for relief is there any contention raised that the State statutes are unconstitutional under the First Amendment or under any other provision.

There is no declaratory judgment about the Constitutionality of State statutes sought, nor any broad injunction against enforcement of the State statutes.

Those issues that are mooted in amicus briefs in this Court in case with a suggestion that the abstention doctrine might come into play before a Federal Court should involve itself in that question, but the question has not been put before the District Court in the complaint or in the motion for a preliminary injunction and the question is not here as we see the case.

Byron R. White:

What about Younger and (Inaudible) sort of an approach or Atlantic Coast Line?

Lawrence G. Wallace:

Well, we have emphasized in our brief that we think cases concerning private litigation between private parties stand aside from the issue here which is the issue under the Leiter Mineral doctrine.

Byron R. White:

So if this were private parties trying to get the Federal Court injunction, the Younger case might well?

Lawrence G. Wallace:

Might well control and —

William J. Brennan, Jr.:

Even though it opened the case?

Even though most states (Inaudible)

(Voice Overlap)well it would might?

Lawrence G. Wallace:

I do not believe the Younger case would be the most closely in point.

I think the Richman Brothers case, it would be more closely in point.

Byron R. White:

And the Richman case just to be heard —

Lawrence G. Wallace:

I am unfamiliar with that case, Your Honor?

Potter Stewart:

Well, let say it is well common ground between you and your brother counsel on the other side, if the plaintiff were the United States of America, there would no jurisdictional bar and that if the plaintiff were John Jones, there would a jurisdictional bar and the plaintiff in fact is the National Labor Relations Board, that is what makes it closer?

Lawrence G. Wallace:

I think that is very accurately stated Your Honor.

There is no dispute by anyone in this case is that if the suit had been brought in the name of the United States, the Leiter Minerals case would be controlling and I think that it is very difficult to read the Leiter Minerals case any other way.

Potter Stewart:

I should have conceded at least in his brief as I read it, by your brother counsel?

Lawrence G. Wallace:

That is my understanding.

In fact, the only qualification of Leiter Minerals withstands that is raised in the whole of case is in our brief in which we point out that when the United States is pursuing not to protect the public interest but in pursued only of a private entrance that it had a duty to pursue, the Court has refused to extend the Leiter Minerals exception to that kind of case.

That present case is not that kind of case.

I do not think we need concern ourselves here with that kind of case but that is the only qualification on the doctrine that has been raised in the brief and the issue between us is whether the doctrine is more accurately characterized as we like to characterize it, as the governmental exception of the Section 2283 or whether it applies only when suit is brought in the name of the United States.

We do not rely on any of the express exceptions in Section 2283.

We find ourselves unable to in face the Court’s holdings about the narrow scope of those exceptions.

Potter Stewart:

That case is Richman Brothers?

Lawrence G. Wallace:

That in Richman Brothers and it is more recently in the Atlantic Coast Line case.

There has been no challenge before the Board concerning this picketing and the Board has clearly held that the filing of a state suit in good faith to invoke remedies under a State statute is not unfairly for practice.

It is not within the scope of the Board’s jurisdiction to question.

So the issue comes down to whether the Leiter Minerals exception and I do want to point out —

Harry A. Blackmun:

Mr. Wallace through statutory exceptions what argument before the Eight Circuit was (Inaudible)?

Lawrence G. Wallace:

They did argue them.

The Board argued them in both the District Court and the Court of Appeals at least abandoned the argument in this Court.

The argument was rejected.

It was made as an alternative argument.

Now, I do want to point out that the holding of Leiter Minerals on this point seems to us clear and concise.

It is set forth on page 23 of our brief and after the policies behind that are summarized by the Court.

The holding is stated really in a single part of the sentence that we had at the end of quotation.

The interpretation excluding the United States in the coverage of the statute seems to us preferable in the context of healthy Federal State Relations.

Immediately after that sentence in Leiter Minerals, a new paragraph begins with the word that the Court will then turn to the merits of the question.

The question still remains whether the granting of an injunction was proper in the circumstances of this case.

Any discussion in the opinion relating to the particular facts of Leiter followed that statement by the Court.

The interpretation of 2283 on the jurisdictional question was the simple interpretation, that the United States has excluded from the coverage of the statute.

That interpretation is now unchanged by Congress for 14 years.

Now, it is frankly difficult perhaps to think of reasons why it should make a difference in terms the purposes of Section 2283 or the rational of any of these cases.

Why it should make a difference whether the suit is brought in the name of the United States or in the name of a particular agency?

A recent decision by the Court of Appeals for the Second Circuit seems to us to illustrate this very well and we referred in our brief on page 25, Note 11 to the litigation that was then pending which has now been decided by both of District Court and the Court of Appeals, a case called the United States against City of New Haven.

In that case a State Court injunction had been obtained against the use of a particular runway in the New Haven Airport, that Federal Aviation Administration, of course has jurisdiction over the safety of Airports and the provision of Airport services and it is part of the Executive Branch of the Government.

It is now part of the Department of Transportation.

The Justice Department in its behalf filed suit in the Federal District Court to enjoin the enforcement of that State Court injunction as having invaded an area within the province of the Federal Regulatory Scheme.

William J. Brennan, Jr.:

Mr. Wallace, is that Federal Aviation Administration in that respect different from the NLRB?

It is the plaintiff in this statute that they are no United States, does that mean?

Lawrence G. Wallace:

It is different in that and it does not have statutory authority to bring suit in its own name, that is the difference.

It is hard to see any other difference as I am about to point out.

The suit was brought and the District Court upheld the jurisdiction within Leiter Minerals and issued to preliminary injunction and the Court of Appeals for the Second Circuit recently affirmed the granting of the preliminary injunction on a case decided August 31, 1971, docket number 71-1669, it is called United States against the City of New Haven.

Now, it seems for purposes of the statutory policy in Section 2283, New Haven stands that the Federal Aviation Administration is not empowered to sue in its own name, sue within the name of the United States, yet other agencies which has very comparable responsibilities for the provision of the services to the public, such as the Interstate Commerce Commission, Federal Power Commission, the Federal Communications Commission, do have statutory authority to sue in their own name, would be implementing Federal policies and interference with Federal policies by bringing entirely comparable suits.

Lawrence G. Wallace:

It is hard to think of any reason why they should be a difference should result on the jurisdictional ground under Section 2283.

Now, this does not mean that a host of new cases, a large volume of additional litigation would be opening up as a result recognition of the scope of the governmental exception.

It seems to us that it was recognized a while ago in Bowles against Willingham for that matter.

There had been establishment of it under the office of Price Administration Legislation.

It is true that the opinion in that case pointed to statutory authority for the administrator to seek injunction, that statutory authority did not specify that injunctions could be sought against the enforcement of State Court judgment and it is really not significantly different from the statutory authority of any other agencies seek injunction.

We have inquired of a number of agencies to determine what their experience has been in this field and most of them had replied that they cannot recall an instance in which they had to seek relief against a State Court judgment where they could not at least attempt to justify that relief or within the rationale of the express exception in Section 2283, but several of them did mention to us that such cases could arise that would very important to the administration of their statute and for that reason they are interested in the outcome of this litigation.

I will cite just one instance.

The Federal Trade Commission and the Equal Employment Opportunity Commission both pointed out to us that under certain statutory provisions they have an obligation to conduct an investigation from secret and to keep the matters that they investigate confidential and they would be concerned about possible disclosure of some these matters in State Court proceeding and would be rather hard pressed to justify relief under the express exception to 2283 in such a circumstance, it has not yet arisen, but it could arise.

The Equal Employment Opportunity Commission points out its particular concern because of the statutory policy behind the confidentiality of their investigation, a policy of protecting complainants and witnesses against reprieved or intimidation and the like.

So there are some important policies involved here.

Further more in light —

Byron R. White:

Mr. Wallace could I just ask you in dealing with the Norris-LaGuardia Act and the National Labor Relations Board, does the board’s right to get an injunction despite the Norris-LaGuardia Act rested on specific statutory exemption?

Lawrence G. Wallace:

I now would know a specific statutory exemption.

I did not think the terms of the Norris-LaGuardia Act complied with the Board.

Byron R. White:

Well, I notice at page 41 of your brief, a statutory provision upon the filing of any such petition etcetera, the District Court shall have jurisdiction and grant injunctive relief, notwithstanding any other provisional of law.

That is not express?

Lawrence G. Wallace:

Well, that is an important thing in Court Order and this is not a proceeding brought under that provision.

Of course that is in it.

Byron R. White:

(Voice Overlap) important, are they not comparable provisions, I do not remember, but I thought wherever the board has been given authority to seek injunctive relief is usually been added something like this, “notwithstanding any other provision of law.”

Now, if your position is correct it would have not been necessary at all to provide for that exemption from Norris-LaGuardia because Norris-LaGuardia does not party the United States at all?

Lawrence G. Wallace:

Well, that is an issue that I do not think need be reached in this case.

Byron R. White:

Well, it might have a lot of to do with whether Congress intended as the Board to exercise the authority of the United States.

It is outside these specific areas where the Board can get injunction, if outside that area Norris-LaGuardia would bar the injunction of the Board, then the Board is not the United States?

Lawrence G. Wallace:

I think there is initially a serious question whether Norris-LaGuardia would have any applicability to an injunction against just an enforcement of the State Court judgment rather than an injunction that goes to the conduct of the —

Byron R. White:

About the labor disputes?

Lawrence G. Wallace:

Well, it is.

But it is a very limited scope of an injunction.

It does not seem to me to be the kind of interference with the settlement of labor disputes that Norris-LaGuardia would concern with.

Indeed this kind of injunction seems to have the policies of Norris-LaGuardia by presenting State Court interference with the equal settlement of labor dispute.

Well, I think one other statutory position might be pointed out as an example of the immateriality even to Congress of this distinction and that is a provision of the interstate commerce act which is a particular provision and is entitled 49 of the Code, Section 16, sub Section 12, entitled proceedings to enforce orders other than for payment of money and there the statute provides if any carrier fails or neglects to obey any order of the Commission other than for the payment of money while the order is in effect, the Interstate Commerce Commission or any party entered thereby or the United States by its Attorney General may apply to any District Court of the United States for the enforcement of the order, a District Court of competent jurisdiction and so that is just an example of congress’ attitude its policies and its statute are to be enforced by whoever has the litigating authority, in that case in the alternative by the United States or by the Interstate Commerce Commission.

Lawrence G. Wallace:

It is difficult for us to see the materiality of this distinction.

Now, in the Labor Relations field the question is of perhaps a greater significance and will or has produced a somewhat larger line of litigation already.

The Board informs me that it gets about a dozen complaints a year, requests that it files suits of this type.

It has on the average been filing less than one per year and partly of course because of doubts about of the outcome of this issue, but also because it selects these cases carefully and plans to continue to do so, if it is successful in this litigation which seems to us to point out the significant difference between suits brought by public authority to vindicate the important Federal policies reflected in the National Labor Relations Act and other statutes and private litigation which has been bared under 2283 and which was really the concern of Congress in enacting 2283 and its predecessors.

The difficulties in the enforcement of the policies that the act that result from injunctions of the type issued by the State Court here, we think are manifest.

Indeed the District Judge himself spelled them out in a rather regretful paragraph in his opinion in which he said that the decision leads to really non-less result and they have been rehearsed previously in opinions of this Court.

Now, the question remains what alternatives would be open to the Board with not able to secure relief in the fashion it is seeking here, at least to have its complaint entertained.

Other than leaving the matter to private litigation entirely which means unsatisfactory, it might add responsibilities.

There are only two possibilities.

One is to seek to intervene or to participate as amicus curiae in the State Court proceeding.

Whether it could intervene since no order of the Board is at issue would be highly questionable.

If it could not participate as a party, intervener then whether an appeal would be taken would be out of his hand.

In addition even if it could participate, it would be subjected to the possible pitfalls of unfamiliar State procedure, the possible limitations of state discovery proceedings and other disadvantages in comparison with the Federal forum where Congress contemplated it would be doing is litigating.

The other possible alternative is the suggestion that was raised in the Court’s opinion in Richman Brothers that perhaps the filing of a State Court preceding that interferes with the area preempted by the National Labor Relations Act might itself be an unfair labor practice.

The Board, and we have pointed out in our brief, has careful consideration, rejected this position.

When a suit is brought in good faith in a State Court to invoke remedies provided for by State Statute and it seems to us that for the Board to hold that good faith suit and such circumstances could be brought only if the risk of being held and committed an unfair labor practice would be a far greater intrusion on the prerogatives of the State and the dignity of State procedures to prevent even the invoking in good faith of State remedies than is the settled interpretation as we understand it, of Section 2283.

I would like to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Very well, Mr. Wallace.

Mr. Hirsh.

Solomon I. Hirsh:

Mr. Chief Justice and may it please the Court.

I move that William A. Harding be permitted to argue pro hac vice on behalf of respondent Nash-Finch Co. doing business as Jack & Jill Stores in this case.

He is a member of good standing of the Bar of Nebraska, but he has been a member for a less than three years.

Warren E. Burger:

Your motion is granted.

We are prepared to hear Mr. Harding.

William A. Harding:

Mr. Chief Justice, Your Honors and may it please the Court.

This case has been another example of the continual failure of the Labor Board to acknowledge that the Congress meant what it said when it passed the Anti-Injunction Statute and noted that Federal District Court do not have the power, indeed they are prohibited from enjoining the State Court proceedings unless specifically in aide of their own jurisdiction in order to effectuate their own judgments or where specifically provided for by Congress.

Of course, this prohibition and these exceptions are found in 28 U.S. Code 2283 and that is the heart and basis of this case.

Potter Stewart:

Of course, the Court has already said that those were — do not mean exactly what they say as Leiter Minerals?

William A. Harding:

Yes, Your Honor, but that was not so much that they do not mean what they say.

They had not said enough —

Potter Stewart:

They had not said enough.

There is another exception in addition to those exemplified at 2283?

William A. Harding:

Yes, Your Honor and I would like to explore for this Court that United States exception that the Board talks about as well as a few other reasons why we believe this Court should affirm the decisions of the Lower Courts in denying to the Board the relief it requests.

But before I do so, I would like to emphasize a few facts, the Board took care not to emphasize and one of it was incorrect.

First, the Board incorrectly noted in oral argument that the employees of the Nash-Finch Company were striking in the summer of 1969.

This is incorrect and the Board’s complaint does not say.

The Board’s complaint, part 6, noted on page 5 of the appendix specifically notes that the union began picketing and as noted in affidavits passed as an appendix to our brief in support of our petition in the State Court clearly point out the pickets were not employees.

Therefore, it was understandable that the company would not have easy access to the names or identity of those people and that the State Court therefore required that anyone that was being presumably paid by the union to come and picket with first come to the State Court, and identify themselves and submit to its jurisdiction.

So these were not employees.

These were presumably paid union personnel that were conducting picketing. Secondly and perhaps most importantly, the picketing in the instant case is acknowledged and judicially has been determined as mass picketing.

On the one hand we will have peaceful picketing and on the other end of the spectrum, we have non-peaceful picketing.

In between a type of picketing that maybe either or both is a type of picketing that most State Courts attach statutes regarding and which they refer to as mass picketing.

In implementing its duty under a State Police power to protect the rights of its citizens and to make the conclusion that they may not be hampered by any type of picketing that would prohibit ingress and egress or lead to violence, most States prohibit, as does the Nebraska Statute, the numbers of pickets that maybe placed and specifically states that they may not prohibit the ingress and egress.

The Nebraska Statute has few other factors in it which suffice it to say that the affidavits which we have submitted in the State Court which are set forth in appendix 2 in our brief, indicates that there was substantial blocking of ingress and egress by these non-employee pickets.

That there were substantially more than the numbers allowed by the State Statute.

There were also some other areas of some threats to both customers of the stores or store employees which suffice to say Your Honors, if the Board comes before this Court or rather piously proclaiming, this is peaceful picketing and it is not.

There is a judicial determination that it is mass picketing and there is a little bit difference.

Because if it is peaceful picketing only the company acknowledges that there is obviously at least an arguable, at least an arguable conclusion that the picketing is therefore, totally, completely governed by the National Liberations Act and the Board.

However, if it is mass picketing there is a very substantial State interest involved under the State Police powers and that is what we have at issue in this case, Your Honors that State Police power versus what the Board would ask this Court do which is to imply to it an exception on the basis of federal preemption.

So that it may go into any Federal District Court anywhere in the country and get an injunction of any State implementing this peaceful — it is police powers as regards mass picketing.

Now, we also note in our brief Your Honors that, it is truly we have never had any holding on the merits.

There has never been any findings of fact by the Federal District Court.

Unfortunately, we were not really in a position to be vitally concerned about this since we already had our judicial determination that it was mass picketing, now that is security issue.

The Board was the moving party in the Federal District Court made no effort to place any of those facts before the Court and as noted in oral argument the case was determined on our motion to dismiss and then it was affirmed by the Eighth Circuit.

But there are police courts or Police Department, Fire Department records, records of the State Department of Agriculture which we note in our brief that we believe this Court could take judicial notice of which indicate that there were substantially other activities that could properly be used to classify this picketing as violent.

There were —

William J. Brennan, Jr.:

May I ask Mr. Harding, is any addition there on the issue before us, namely whether there was jurisdiction in the District Court to entertain this complaint?

William A. Harding:

No, Your Honors.

We know that if the District Court was correct, it did not have jurisdiction, it does not make validity —

William J. Brennan, Jr.:

But the facts that you are telling us really do not bear on that question of board?

William A. Harding:

No, Your Honor.

But the Board seems to make that view because the Board says that they should have an exception implied for them, notwithstanding the United States exception.

Our argument goes on to say we feel that this Court on the basis of federal preemption alone, an argument which was rejected by this Court both in the Richman Brothers’ case and last year at Atlantic Coast Line on the basis of preemption alone it should allow the Board or any other federal agency to enter the District Court.

We do not agree with that.

We do not believe this Court does.

Warren E. Burger:

As I understood you conceded two minutes ago Mr. Harding, that if this record showed peaceful picketing, you would be out of the court?

William A. Harding:

Yes Your Honor, if it was peaceful picketing we would not have gone into state court.

Warren E. Burger:

So to that extent, the facts are relevant to your argument in that respect, are they not?

William A. Harding:

Only to the extent, Your Honor that the Board has made this as a basis of its argument before this Court as to why it should have had jurisdiction given to the District Court and in our counter argument to that fact.

We are only noting that if this Court should consider this preemption argument of the Board that it should also consider few other things than just peaceful picketing.

But we believe the issue could be disposed off by the judicial determination in the State Court that this was mass picketing, not peaceful picketing.

Byron R. White:

Well, yes, but would you not be making the same 2283 argument here even if there was nothing involved in the State Court except peaceful picketing?

That the Federal Court would have no power, under 2283 to enjoin the State Court proceedings?

William A. Harding:

Perhaps, Your Honor but if there is —

Byron R. White:

But perhaps?

William A. Harding:

If there is only peaceful picketing, I doubt we would be here.

Byron R. White:

Well, that is not the point?

William A. Harding:

I realize that that is why I say perhaps.

Byron R. White:

It so happens that the Court, that the State Court said that even if you limit picketing to two people, you cannot hand out any hand bill.

Now, there is a — just this clear — an issue in this case that would you say that Federal Court could have — in this case could have enjoined the State Court from enforcing that particular provision and its injunction despite 2283?

William A. Harding:

If there is only that issue involved Your Honor?

Byron R. White:

Yes.

William A. Harding:

If there is only that issue involved I think the Federal District Court might have felt itself quite bothered by that issue but I think — I think the —

Byron R. White:

I know (Voice Overlap) Federal District Court.

I want to know what your position is on the —

William A. Harding:

My position is Your Honor should have been litigated in the State Courts.

Byron R. White:

So 2283 would bar the Federal Court in any position?

William A. Harding:

Yes sir.

Byron R. White:

Why?

I think that would be —

William A. Harding:

I do not believe that that is really properly before this Court or I have — in further answer to your question I —

Byron R. White:

It is not or I do not think it would be before the Court as to whether the — any, the issue is whether any part of the — the Federal Court had power to enjoin any part of the State Court injunctions?

William A. Harding:

Well, the reason I say I do not believe it is properly before this Court is because the Board can adequately get around the limitations of 2283 and it could have and should have proceeded in the State Court and could have (Inaudible) its problems there.

There are number of reasons why we believe that this Court should conclude if the Lower Court was correct in what it did, I would like to first draw the Court’s attention to the statutory framework in which Section 2283 appeared to the District Court as is denoted by this Court in previous questions, the Norris-LaGuardia Act indicate that Federal District Courts are not encouraged to grant injunctive relief in labor matters.

29 U.S. Code, Sections 101 and 104 indicate that they should not.

In fact Sections 107 and 109 indicate that they should make detailed findings of fact before they would ever enter such scenario granting injunctive relief.

But, notwithstanding that fact, 29 U.S. Code, Section 160 usually referred to as Sections 10 (j) and 10 (l) of the act gives to the Labor Board the power to go ahead in certain situations in the Federal District Court and obtain injunctive relief if they feel it is an extraordinary circumstance where they should exercise that power and go in and get that injunction.

In addition to that of course, we have 28 U.S. Code 2283 which has been law in some form since 1793 and I submit to the Court, Your Honors that the distinction is somewhat more basic than that even as has been noted in the amicus brief by the National Chamber of Commerce and in our brief that this has been a long standing implementation of the notion in Congress that there should and must be a dual Court system in this country.

I direct Your Honors’ attention to the Federalist paper number 46 which we note in our brief where Mr. Madison, wherein he indicates that there is an even deeper division in that because when the people of this country who are the sovereign gave to the new Federal Government its power to do what they allowed it to do, that there was considerable concern over what that Federal Government might do to the State Governments.

Mr. Madison notes quite clearly at number 46 that if there is an area where a State Court infringes on an area that the Federal Government thinks is unfriendly to it, did notwithstanding that fact, the States must clearly have the advantage.

And reason in that is because the States were giving the power to the Federal Government and that they must maintain that advantage.

And so, we would say that Section 2283 came before the District Court with a very, very basic distinction between the Federal and the State Court judicial systems.

Based upon that, the State action in giving the company relief and redress under the State mass picketing statute is certainly not before this Court on the grounds that that is not within their power.

For as noted in numerous decisions before this Court as set out in our brief on page 13, this Court has many times noted that regulation of mass picketing by State Courts and by State Statute is clearly and completely within the province of the State Police powers.

It was upon this statutory framework then that this matter reached the Federal District Court.

At that point the Board raised its two arguments that it, number one should be considered the United States for the purposes of this action and get around Section 2283 and at number 2 it could be considered to get around Section 2283 simply because it had been established by the Congress.

I suppose they base it on a very large federal preemption argument on this issue.

Warren E. Burger:

Which of our cases emphasize mass picketing as you seem to have it just emphasized that?

William A. Harding:

Well, Your Honor a number of cases, Wisconsin — the Wisconsin cases, the Allen Bradley case has talked about that.

Warren E. Burger:

What about the Atlantic Coast Line?

Did Atlantic Coast Line deal with mass picketing?

William A. Harding:

I am not aware that it did Your Honor.

This Court noted in the City of El Paso case in 1965 about the broad powers of the State Police powers that the State should be granted wide discretion in determining how to exercise those State Police powers and Mr. Justice Reed in Ritter’s Café in 1942 noted specifically that there was no serious question that States had the power to place a good deal of regulation on mass picketing to regulate the numbers and to regulate the blocking of ingress, egress, etcetera.

The basic argument that the Labor Board brings before this Court that it should be considered the United States seems to have been decided by this Court’s decision in the Nathanson case 344 U.S., wherein it was noted that a debt and in that situation a back pay proceeding that was owed to the Labor Board was not entitled to preferences of debt owed to the United States would be.

Nevertheless, this case is still before the Court because the Board maintains that it should be considered the United States because there is no reason to consider that it would not be.

But Your Honors of course, it is recognized that the Federal Government is a government of limited of powers.

It is also a government of specific powers.

The Labor Board was established not to be the United States for all intents and purposes but it was established to be a specific agency of the Government to enforce a specific statute under specific policy directives of the Congress.

I do not believe that Congress intended to make the Labor Board into what might be referred to as a Frankenstein’s monster and that it could go across the entire country doing what it would like and considering that it had the powers, immunities and privileges of the United States.

Indeed, this Court has noted previously in cases very similar that agencies of the United States Government as noted in the Menihan case which we note in our brief on page 20, page 23, that this Court has previously concluded that agencies of the United States are not to be considered to have and to posses the powers, privileges and immunities of the United States unless that Congress clearly grants that power to them.

William A. Harding:

And Your Honors the Board points no specific statutory authority for their claim that they maybe considered the United States for the purposes of this action.

Indeed, all they want to do is circumvent another specific statutory provision which is 2283.

Yet they point to know specific statute granting them that power.

They do point to what they refer to as implied exceptions under form of Section 265.

In our brief, as we noted, as this Court noted in the Richman Brothers’ case, there is no need really to consider those implied exceptions because it is clear that the Congress did not intent for any implied exceptions to live beyond the enactment of Section 2283.

But for argument’s sake, it should be noted that the cases that the Board relies upon are not really cases wherein our judicially implied exceptions because there was, in fact, conflicting statutory authority.

In four of the cases the Board relies upon, that authority was granted by Section 205 (c) of the Emergency Price Control Act.

The most noted of those cases was Bowles v. Willingham.

In fact, it is notable that approximately 10 days ago, the Government went down the street to argue in the District of Columbia Circuit and told Judge Leventhal that the Bowles v. Willingham case specifically gave the President the power to do what he is doing now in the Wage and Price Control freeze because it was an emergency statute and they used Bowles as the basis for their case.

Yet, they come in to this Court today and argue that the Bowles case is just a clear indication of the fact that any government agency can be given a power of the United States under rather broad argument of federal preemption and make no mention of the fact that that was an Emergency Price Control Act.

That was not a regulation statute as we would note in the general sense of the word.

However, two additional cases cited by the Board in its brief specifically gave jurisdiction to Federal District Courts under Section 79 (k) of the Public Utilities Holding Act.

The final case cited by the Board as a presumed exception under former Section 265 was given specific authority, gave specific jurisdiction of the District Court under the Agricultural Marketing Act Section 6.

So the Board comes before this Court not with implied judicial exceptions but with conflicting statutory authority under prior Section 265.

And that Your Honors as was noted in the revisers’ note of Section 2283, was why the Congress passed Section 2283.

They had to get their House in order and note specifically when jurisdiction was granted to a Federal District Court and they took care of that by placing the first exception under Section 2283 the words “except where specifically authorized by Congress” and the Board is specifically authorized by Congress under Section 10 (j) and 10 (l), to seek and to obtain injunctive relief.

But those Sections did not apply to this case as the Board acknowledges.

We submit Your Honors that had the Congress intended to give the Board the power to get injunctive relief in other situations, it would have said so.

Every place where it has given the Board power, it has specified that power, especially Your Honors in the area of injunctive relief which might be distinguished from rather more administrative powers which the Board notes in its brief.

Of course not all of the powers to implement that statute were given to the Board and the statute of course not as far as administrative matters to be concerned.

But when it comes to an injunctive power, those powers have been specific in their implementation by the Congress and we would submit that since 10 (j) and 10 (l) do not apply to this case, the Board has no statutory power to attempt to get the injunction that it seeks.

Now in addition, in oral argument, the Board notes or the respondent would rely upon through another indication of why the Board should not be before this Court claiming to be the United States.

49 U.S. Code, Section 16 dealing with the powers of the ICC as the Board noted specifically says that to implement those statutes either the ICC may do so any aggrieved party or the United States.

It is fairly obvious that the Congress need not have said the ICC or the United States if there was no difference.

But the regulatory agencies of the Government are not parts of the Executive Branch of the Government.

It is specifically noted in even the Government Organization Manual put out by the Government printing office that there is a distinction between branches of the Executive Government and regulatory agencies.

In fact, there are 51 regulatory agencies, including the Labor Board lifted as administrative agencies.

Your Honors, this distinction was drawn by this Court sometime ago in the case of Montgomery’s Executor wherein a Federal Trade Commission case involved the power of the President to remove a member of that commission.

Now, this Court concluded that since the Federal Trade Commission was not an Executive Branch of the Government that therefore the President did not have that power and in so doing clearly and carefully drew the distinction between Executive Branches of the Government.

Those branches that do not have the power to sue in their own name but must sue as the United States and are indeed to be considered the United States as opposed to administrative agencies, for example, the Federal Trade Commission and as was noted in oral argument by the Board, FAA in a case before the Second Circuit has sued under the name of the United States, but it is in fact an Executive Branch of the Government and that is a significant difference that is not found in this case because the Labor Board does sue in its own name but it is not the United States.

William A. Harding:

It does not have all the privileges, powers, immunities of the United States and that it therefore may not come under this Court’s decision in Leiter Minerals to remove itself from the prohibition of Section 2283.

An additional argument that the Board makes is that not withstanding any argument that it might be considered the United States, it should be allowed to proceed in this case simply because it was established by the Congress.

It has preempted the area of labor relation and that therefore it should be able to proceed against any State Court that gets into the area of labor relations in any degree I would imagine.

That argument was advanced also in the Richman Brothers’ case. Justice Frankfurter in that case noted that that argument must be rejected simply because federal statutes may have preempted an area, Section 2283 must be strictly construed.

And that unless there is a specific act of Congress, unless it is in aid of that Court’s jurisdiction or to effectuate the judgments of that Court, no Federal District Court may overlook the limitations of Section 2283.

Thurgood Marshall:

Do you consider it limited solely to executive?

William A. Harding:

No, Your Honor.

I would imagine that if the Congress would request the Attorney General to proceed for it, they might do so in certain circumstances, I would imagine all branches of government could.

Thurgood Marshall:

Well, how do you account for the fact that the Solicitor General is here representing?

William A. Harding:

Well, Your Honor that is an internal procedure that the government follows, that I do not have any control over.

I know that there are several people at the Labor Board that would like to be here today but the Solicitor is not available.

The fact is Your Honor that we do not discount the fact that they are an agency to the Federal Government that they have work of a federal nature to do.

What we do say though is that that work of a federal nature to do, has been specifically granted to them in at least as regards the injunctive power, a power that the Congress does not wish exercised by Federal District Courts in labor matters generally.

But the Congress has been careful to only grant limited power to the Labor Board to proceed for injunctive relief and that that power has not been given to the Board to circumvent the limitations of 2283.

From a practical standpoint, the argument of preemption by the Labor Board really attempts to get the cart before the horse because what it tries to do is to get the merits of the case in before jurisdiction is initially granted.

And this of course was why the District Court denied the jurisdiction of claims of the Board.

In fact, as we noted in our brief, later Mr. Justice Cardozo when he was deciding cases for the State of New York noted that rights exist and that they maybe granted after jurisdiction has been found, but that rights in and out of themselves may not confer jurisdiction.

This is what the Board would seek to have this Court to do.

There are additional practical reasons to conclude that the Labor Board should not properly be before this Court seeking to circumvent limitations of Section 2283 to go beyond the system, the system of dual courts that has long been established and that is because the Labor Board does not even exercise the power that it is granted under Sections 10 (j) and 10 (l) as noted in our brief.

In over 75% of what it acknowledges to be meritorious cases it does not seek to obtain injunctive relief.

It is rather anomalous then that the Board comes before this Court and urges this Court to imply into a judicially legislative power that the Congress has not granted to it.

For all of these reasons then, we urge this Court to again strictly construe Section 2283 to conclude that the Board may not on a basis of federal preemption alone circumvent the limitations of Section 2283 into referring the Lower Court.

Warren E. Burger:

Thank you Mr. Harding.

Mr. Wallace you have two minutes left.

Lawrence G. Wallace:

Thank you, Mr. Chief Justice.

I would just like to say a word or two about some of the cases relied on by the respondent figuring Nathanson against the National Labor Relations Board in which this Court in construing the Bankruptcy Act decided that an award of back pay owing to the Labor Board while it was debt owing to the Labor Board was functionally in the category of wages owing to work rather than a sum of money owing to the Treasury of the United States and should accordingly be awarded the priority of wages rather than debts owing to the United States for purposes of applying the Bankruptcy Act.

It is hard for me to think that any different result would have been reached in that case had the debt technically been owing to the United States but to be used for the same purpose.

The reasoning of the Court was that this was not a payment to go into the Federal Treasury.

Reconstruction of Finance Corporation against Menihan was a case which the Court held that the Corporation distinguished from Federal agency which had statutory authority to sue and be sued like other corporations should not come within the statutory provision exempting the United States from interest payment in litigation, but the ordinary rules of litigation should apply.

The National Labor Relations Board and other Federal agencies were for years operating under the Federal provision exempting the United States from interest payments.

Lawrence G. Wallace:

So we are not paying interest in litigation and it is only since the amendment of that provision with respect to all litigation by the United States that practices change for the agency in that respect.

Now, if there is any further question about the Norris-LaGuardia Act in this matter I am informed that the Board did brief the question of why the Norris-LaGuardia Act should not apply in this kind of case.

It would either in the Capital Service case or in the Richman Brothers’ case, we do not recall which brief it was but it –

William J. Brennan, Jr.:

Well, Mr. Wallace, I do not know that I have come upon all of them but there appears to be at least three sections.

One at least in the original 1935 Act and two in the 1947 Amendment, where Congress has conferred upon the Board authority to seek injunctive relief where it has added something, notwithstanding any other provision of law or I think in the 1935 Act, notwithstanding the provisions of 101 to 115.

Now, do you think that there is some significance in respect to whether Congress thought the Board might seek injunctive relief and the fact that the Congress at least in those three instances expressly said notwithstanding any argument —

Lawrence G. Wallace:

Congress took that precaution and those provisions all relate to the Boards authority to seek relief (Voice Overlap) that applies directly to —

William J. Brennan, Jr.:

What, how (Voice Overlap) to the question before us?

Lawrence G. Wallace:

Well, I think the difference in this case and those provisions is that there the relief, they are directly on the rights between the parties.

William J. Brennan, Jr.:

Well, I do not suggest that is not so, but might there not be an inference from the fact that at least three times Congress did this?

That Congress grew up and accepts as they did it that the Board was not to be considered that is having authority to seek injunctive relief in Federal Court?

Lawrence G. Wallace:

Well, it is hard to know what is behind the precautionary language of this kind. I do not know. (Voice Overlap)

William J. Brennan, Jr.:

(Voice Overlap)

Lawrence G. Wallace:

Well, there is no specific reference in Norris-LaGuardia Act.

Byron R. White:

It might be, it might be that there is a specific reference in Norris-LaGuardia Act in the 1935 Act, specifically named.

William J. Brennan, Jr.:

Of course the answer there might be that Leiter Minerals was not decided until 1957 and even United Mine Workers case was, 330 U.S. that was decided after 1935 too.

So you might — that might explain the way the 1935 reference that I do not.

It seems to me as it; it is more difficult to explain the way the 1947 reference.

Lawrence G. Wallace:

Well, or course.

The concern of the Norris-LaGuardia Act was with the conjunction (Voice Overlaps)

William J. Brennan, Jr.:

Well, these 1947 references are not Norris-LaGuardia, at least they say notwithstanding any other provision of law.

Byron R. White:

And if the United States is not covered by the Norris-LaGuardia Act, and the agency is entitled the exemption of the United States, that would not been in the need for this sort of provision.

Lawrence G. Wallace:

Well, we need not argue that the United States is not at all subject to the Norris-LaGuardia Act.

Byron R. White:

Well, it has been since so held.

Lawrence G. Wallace:

Yes.

But —

William J. Brennan, Jr.:

But it was the position of (Inaudible)

Lawrence G. Wallace:

Yes.

But if the Board is not at all subject to it is what I should say because the purpose of the Norris-LaGuardia Act was to prevent an injunction that would interfere with the Board’s activity and that is exactly what the Board is trying to prevent in this case, interference with the Board’s function under the Act.

Byron R. White:

But it is the kind of injunction that is not specifically authorized again, under the terms and privilege of the Act.

Byron R. White:

It has to be implied this time.

Lawrence G. Wallace:

It — well, yes, about Section 1337 of Title XXVIII.

Thank you.

Warren E. Burger:

Thank you Mr. Wallace.

Thank you, Mr. Harding.

The case is submitted.