National Labor Relations Board v. Ochoa Fertilizer Corporation

PETITIONER:National Labor Relations Board
RESPONDENT:Ochoa Fertilizer Corporation
LOCATION:Labor Union Protest

DOCKET NO.: 37
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 368 US 318 (1961)
ARGUED: Nov 16, 1961
DECIDED: Dec 18, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – November 16, 1961 in National Labor Relations Board v. Ochoa Fertilizer Corporation

Earl Warren:

Number 37, National Labor Relations Board, Petitioner, versus Ochoa Fertilizer Corporation.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

This case comes here on a writ of certiorari to the Circuit Court of Appeals for the First Circuit to review a decision modifying upon the Court’s own motion, a cease-and-desist order entered by the National Labor Relations Board upon the stipulation and consent of the respondents.

The respondents having signed that stipulation and consent have taken no further part in these proceedings.

The question presented as we see it is whether the Court of Appeals may properly modify as too broad a cease-and-desist order entered by the National Labor Relations Board where the respondents not only raised no objection to the scope of the order, but actually consented to its issuance and enforcement in the exact form in which enforcement was sought.

I should say that this case is one of a group.

There are two other cases in which petitions have been filed to review companion decisions by the Court of Appeals for the First Circuit; the Las Vegas Sand and Gravel case which is Number 38 and Local 476 of the Plumbers which is Number 39.

In addition, there’s a petition pending in the Brandman Iron case to the Court of Appeals for the Seventh Circuit which raises substantially the same question and that in our view, these cases are related to the Box case which is to be argued immediately after this one, although the questions maybe somewhat different.

(Inaudible)

Archibald Cox:

Not all of them.

The Brandman Iron case is a consent decree case.

The Plumbers case was not, and I believe the Las Vegas case was not a consent decree case.

The facts in this case are as follows, charges were filed against the employer, Ochoa and two labor organizations in 1958 under the National Labor Relations Act.

A complaint was issued on February 26, 1959.

The complaint appears at page 13 of the record.

The complaint set out first that Ochoa was an employer subject to the act of Puerto Rico because he engaged in interstate commerce and it also identified as the respondents a local labor organization, a local of the Longshoremen’s and a counsel of local league of labor organization, also representing employees seeking to organize employees in Puerto Rico.

The allegations were that Ochoa and the unions had entered an illegal contract — entered into an illegal contract in 1951 which established a closed shop and illegal hiring hall and an illegal checkoff, all in violation of Section 8 (a) of the National Labor Relations Act so far as the employer was concerned and 8 (b) so far as the union was concerned.

The complaint set forth that the agreement had been renewed in 1955 and that at all times between 1951 at the issuance of the complaint, the employer and the labor union had maintained the agreement and given effect to it.

You’ll recall it under the National Labor Relations Act, any form of union security that is any form of closed shop, union shop or checkoff is illegal unless the union has been designated by a majority of the employees in an appropriate unit, so that the contract and its maintenance were illegal according to the complaint under that provision.

Second, it’s settled law that a closed shop, one which requires an employee to be a member of the union before he is hired and a hiring hall, one which enables the union to hire the man for the employer are both illegal regardless of whether the union has the majority so that according to the complaint, there was a case under that branch of the law also.

A period of time then went by and in January 1960, the respondents, the employer and the two labor organizations, the local and the counsel entered into a stipulation.

The stipulation appears at 21 of the record and following.

It recites the charge and the complaint and then sets forth the facts necessary to give the Board jurisdiction relating to interstate commerce, contrary to the statement in the Court of Appeals, there was no admission or denial of the Board’s allegations.

That indeed is not practice in entering into consent orders in National Labor Relations Board cases.

The stipulation then went on and set forth in precise terms, the order which was to be entered by the Board and you will find the order as recited in the stipulation and as ultimately entered by the Board beginning at page 24 of the record.

Insofar as the employer is concerned, Ochoa, it was ordered, I am just below the middle of page 24, to cease-and-desist from performing, maintaining or otherwise giving effect to any agreement, arrangement, practice or understanding with ILA Council or ILA Local 1762, those were the two respondent unions or any other labor organizations, those are the controversial words as this case arises, to cease from giving effect to any understanding with these two locals or with any other labor organization which in an unlawful manner conditions employment or the retention of the employment upon clearance or approval by the aforementioned labor organization.

In other words, this forbad the employer to maintain a hiring hall arrangement with these unions or any other unions.

The next paragraph (b) forbids the employer to enter in to or give effect to any illegal union security contract, again, with these unions or any other labor organization and again, the words any other labor organizations are in question.

There’s no controversy concerning paragraph (c), then (d) forbids the employer to encourage membership in a labor organization either these or any other by discriminating in regard to hire or tenure employment.

Archibald Cox:

And again, there is a controversy over the words or any other labor organization.

It’s perhaps worth pointing out also the provisions or the controversies that over on page 26, the order went on to require the employer not only to withdraw recognition from these unions but specifically to join with the unions in reimbursing the employees for their checked off dues.

I say that because this suggests that the Board — local board authorities regarded this, a fairly important case, when the employer entered into this order which involved monetary liability that he can hardly have consented to it later.

The provisions directed to the labor organizations, began on page 27.

I won’t trouble the Court to read them.

They are the parallel or converse of the provisions relating to the employer and they ordered the union not to enter into such contract, not to establish hiring halls and not to induce employers to encourage or discourage membership in the labor organization and restrain the union from doing that not only in relation to Ochoa, the particular employer with respect to whom the unfair labor practice was committed but any other employer and again, it’s the words any other employer that are in controversy.

The Board in due course, entered an order in the precise terms of the stipulation and then following the stipulation, it filed the petition for enforcement of the order in the Court of Appeals for the First Circuit.

The Board — the Court of Appeals then entered its decree, modifying the Board’s order by striking out the phrase “any other employer” or “any other labor organization” wherever it occurred.

The Board filed this.

It’s been handled simply on the papers as a routine manner.

The Board then filed a petition for reconsideration which was denied and it filed a second petition for reconsideration, calling attention to the fact that the First Circuit decision was in conflict with a case recently — to then recently decided in the Court of Appeals for the Second Circuit which had — where the Second Circuit had refused to modify a similar consent order in a case which it was asked to and did enforce.

On the Board’s second petition for reconsideration, the Court of Appeals for the First Circuit handed down an opinion covering not only this case but seven others.

And since there’s no appearance here for the respondents and of course none for the Court, it seems to me proper to go through that opinion in some detail because it represents the only statement of the — in justification of what was done below.

The opinion begins on page 60 of the record and follows on from there.

The opinion begins by setting forth the facts of seven cases which were then before the Court of Appeals for the First Circuit.

In all of them, the respondent had committed unfair labor practices in relation either to one employer or one labor organization, but the decree enjoined repetition of the same identical unfair labor practices in relation to that employer or labor organization, the one involved, or in relation to any other employer or unfair labor practice.

The cases were quite different, but they fall into three groups, and I think it’s convenient to think of them that way.

In one group, the consisting of four cases, the employers had engaged in conduct designed to discourage unionization or labor organization among their employees, the conduct varied little but it was the type of conduct which would take place when a union first — might take place — when a union first came and tried to organize a new plan.

And the Board had simply entered orders in a well-established form approved by this Court in the past, ordering the employer not to interfere with union organization or to discourage joining this union or any other union.

The second group consists of one case, Local 476 or the Plumbers Union.

It involved a secondary boycott that is to say the Plumbers Union had induced the employees of one employer to stop doing their normal work in order to compel that employer to cease dealing with the employer with whom the Plumbers had their real dispute.

The order in this case directed the respondent union not to engage in inducing the employees of this particular secondary employer to go on strike, but not to induce the employees of any other secondary employer to go on strike for the purpose of getting at primary employer.

Now, I say the primary employer in its original form, the order covered any other primary employer.

The Board on its petition for reconsideration did not ask the court to restore that so that what the order finally came down to in the controverted form was an order telling the union, “Don’t exert pressure on any secondary employer in order to get this fellow with whom you have to fight.”

The third of group of cases were made up of this Ochoa case which is before the Court and one other case for Puerto Rico involving the same counsel of Longshoremen’s labor organizations, but apparently a different local and the facts of that case were substantially the same as this.

So what we — the Court had was different kinds of unfair labor practice, one, interference with organizational activity, the second, secondary boycotts, and the third, maintenance of an unlawful closed shop contract and unlawful discriminatory hiring provisions.

After going through the facts of these seven cases, the Court concluded from them that the Board had a marked propensity for entering blanket orders and that apparently the Court said, “It did this automatically in every case without regard to the specific facts of the case.”

The Court then turned to the law looking at the decision of this Court in the Express Publishing case and in the Communications Workers case that was decided a term or two ago.

Judge Aldrich said, “That the rule was that if a broad injunction,” he spoke generally, those are his phrased words, “If a broad injunction was going to be entered, there must appear to be some affirmative reasons for it.”

Then he took up the suggestions that the Board counsel had made in the request for reconsideration and said that there was no merit to the Board’s argument that from the facts which appeared in the record, it was not unreasonable for the Board to conclude that the respondent might engage in the same misconduct, vis-à-vis another labor union or another employer.

Archibald Cox:

For example, the Board had suggested in the cases involving employer discouragement of union organization that it was reasonable to assume that if an organized employer interfered with restrained or coerced their employees in getting ready to join union (a) which was trying to organize the plant, that it was fair to infer that he would probably engage in the same misconduct if they began to join some other labor organization.

But that, Judge Aldrich said was simply unsubstantiated supposition and was the kind of unsubstantiated supposition that had been held improper in the — by this Court in the Communications Workers case.

Then at the top of page 66, he laid down what I think it’s fair to say is a general rule.

In those cases in which the record makes it apparent that there was for the single party involved, we will not grant it, in other words, will not grant an order broader that one limited to the single party involved.

He then turned to the consent cases which presented of course a somewhat different problem than those — in which the order has been entered after contest and he concluded that the Cheney California Lumber case in 327 U.S. authorized the Court to assume responsibility for the order even though the objection hadn’t been raised below and to set it aside if it was too broad.

As he read the case, the Court which we quite disagree with, the Cheney case was a holding that the record must substantiate the order and that it was immaterial and then if that wasn’t done, it was immaterial whether the point had been raised below.

He then went on and dealt with the Board’s argument that in the consent cases, it must be assumed that there were facts that would warrant a broad order, and Judge Aldrich said as to that, that the Board had entered too many broad orders that it cried wolf too often and that therefore, the Court’s, “Our normal disposition is to assume in the absence of a contrary showing that the case is an ordinary one rather than a special case calling for extraordinary relief.”

And then he went on and argued that if the Board was to get a broad order by consent, there must appear in the stipulation some facts showing that there had been a generalized scheme to violate the act.

And the final part of the opinion develops his reasons for thinking that this would not interfere with the Board’s handling of cases by consent without a content.

We then brought the case here, the decision of the First Circuit conflicts with decisions in the Second, Sixth and District of Columbia Circuits.

It is supported by the decision of the Seventh Circuit in the Brandman Iron case.

Felix Frankfurter:

Mr. Solicitor, you may have told us but I missed it if you did.

How many of the seven cases that Judge Aldrich took under review are now before this Court?

Archibald Cox:

Three, one of each type.

Felix Frankfurter:

One of each type.

Archibald Cox:

This is the only one in which the writ has been granted.

Felix Frankfurter:

Yes.

The others are —

Archibald Cox:

The others are simply pending our petition —

Felix Frankfurter:

And the others are not consent cases?

Archibald Cox:

The others are not consent cases.

In addition, there is still one other case from the Seventh Circuit here before this Court, the Brandman Iron case which was a consent case.

Felix Frankfurter:

And it’s in conflict and supports this — support the (Voice Overlap)

Archibald Cox:

And it supports this.

Felix Frankfurter:

Okay.

Archibald Cox:

There was no — there was opinion of any length in the Brandman Iron case.

The Court indicated, I think two things which it might be important to point out.

It again said it relied on the concurring opinion of Justice Stone in the Cheney case for saying that the court has a special responsibility with respect to the scope of the decree.

Then it says that if it entered a broader decree, there would — might be a problem on contempt if the — it was an effort later to punish the union for conduct not in relation to the parties to the litigation before the Board.

It seems to that, I may say, that one of the fundamental errors that the Seventh Circuit, the First Circuit appeared to have committed is in thinking of these cases before the Board as if they were contest between the private parties, the charging party and the respondent whereas of course what the Board is concerned with is preventing the renewal of the unfair practices on a broader scale and in the public interest and not simply to protect private individuals involved.

Archibald Cox:

Our position in this case is very simple.

We believe that the court below erred in undertaking to modify an order of the National Labor Relations Board which was unquestionably within its jurisdiction both as to the subject matter and the extent of the order and which was entered by consent.

Felix Frankfurter:

Do you mean by that that it was an order allowably, permissively made within the confines of a complaint?

Archibald Cox:

No. I didn’t mean quite that.

I meant two things, one that it was — this was a case plainly within its jurisdiction.

Felix Frankfurter:

You mean generally speaking.

Archibald Cox:

It’s a case within the Board’s jurisdiction.

Felix Frankfurter:

Alright.

Archibald Cox:

It affected interstate commerce —

Felix Frankfurter:

Alright.

Archibald Cox:

— employer and employee.

I meant second that this is the type of relief which the Board has the power to grant, that is to say if it made on order here directing the employer to pay a fine of $50,000, the Board has no power to grant that type of relief.

Felix Frankfurter:

Does the complaint — has the complaint any relevance to this problem mainly the scope of grievances, of violations set forth?

Archibald Cox:

Well I — I would think — let me add — I think I’m going to hand to you.

First, I think it should be recognized that the complaints issued by the Board have never made any specific request with respect to relief.

So on this —

Felix Frankfurter:

I’m not talking —

Archibald Cox:

Yes.

Felix Frankfurter:

— I’m not saying a complaint like a bill in equity setting forth the prayer but the outlines of what it is that is charged again — it charges violations of the act.

Archibald Cox:

Well this — in this case without attempting to go beyond it, this is certainly an appropriate type of order for the kind of offense that the Board — that the complaint alleged.

Felix Frankfurter:

Or the breath of relief.

Is it — this really raises what you’re indicating that — what the function of the complaint is and extent to which it must be recognized, it presents issues, Board determinations and therefore for Board remedies.

I know about that?

Archibald Cox:

Well, I don’t — the complaints did not allege in anyway that this employer or this union had engaged in this kind of unfair labor practice on other occasions.

Neither did it specifically charge that it was a fair inference from the unfair labor practice in which they have engaged in the past, that they might engage in the same or related unfair labor practices in the future.

It just set forth what they had done.

Felix Frankfurter:

But under that complaint, if it had become as it has not become an adversary proceedings under that complaint, it could be developed that this wasn’t the first incident, could it?

Archibald Cox:

Oh yes, oh yes.

Felix Frankfurter:

And therefore if — if the evidentially material recorded the breadth of order, the complaint would not have restricted it.

Is that correct?

Archibald Cox:

That is correct.

There’s no — I don’t believe there’s any question about that.

Felix Frankfurter:

Okay.

Archibald Cox:

Nor do I understand that Judge Aldrich would have disputed that, also he doesn’t say anything one way or another.

Felix Frankfurter:

Yeah, but it bears on the general question of what the record, quote “the record” is or isn’t.

Archibald Cox:

There had been no — there had been no possibility here of the respondent objecting to evidence tending to show that the maintenance of this hiring hall was a general thing in order to get a broader order.

I’m sure that — that kind of proof has been introduced frequently under this kind of complaint.

Felix Frankfurter:

What in fact my question, Mr. Solicitor, is the application, if it’d be a relevant test of Chief Justice Stone’s underlying thought that certainly a court, since after all we’re reviewing here that which amounts to an injunction by the court that the reviewing body, the court and this Court, is justified in — in not granting a greater, a broader or pervasive review than it would grant on this record, whatever it maybe, if this came up from a bill in equity and relief granted by (Voice Overlap)

Archibald Cox:

I think it’s fair to say that nothing in this complaint would have restricted the Board’s proof in such a way that the record it might have made could not have supported this argument.

Is that it?

Felix Frankfurter:

Therefore — therefore the Stone test, if I may call it that, is an illusory one in a way, that you can’t say if this had been a suit in equity on this complaint, no such relief —

Archibald Cox:

I don’t think it works in a — it doesn’t quite work in a Board consent case.

Felix Frankfurter:

Well, I’m not saying it does, all I’m —

Archibald Cox:

I have —

Felix Frankfurter:

— I’ve got to find out the reach of that test given in the Express Company case.

Archibald Cox:

We have no quarrel with that — with that test.

Indeed, let me state in a sentence and I will come to it a little better.

Felix Frankfurter:

But you (Voice Overlap)

Archibald Cox:

I indeed would argue that the test set forth in the Express Company case was a proper test that the question is whether, if you have a record, that the question is whether the conduct which the record establishes may reasonably be thought to give rise to a fair as Justice Stone said that the things which are forbidden would otherwise be committed in the future.

We have no quarrel with that.

Felix Frankfurter:

(Voice Overlap) if the record — if it had been or where there is an adversary proceeding and the record is barren of any suggestion that what he’s complained of is otherwise an isolated or episodic incidents then you will get the application of his test, wouldn’t you?

Archibald Cox:

Except that you would always have — you would always have this question, what you mean by an episodic incident.

Felix Frankfurter:

Alright.

Archibald Cox:

But I think — and I’m not trying to quarrel with you, but I think that’s a very important and this is again, one of the quarrels that I would have with Judge Aldrich, that I think it’s a grave mistake to reduce this to a matter of words and that one unfair labor practice may reasonably give rise to an inference with respect to the respondent’s future conduct.

It would be quite different from the inference you might draw about another kind of unfair labor practice.

Felix Frankfurter:

I’m not trying to anticipate your argument, but I don’t think you can dissociate, I don’t think you can take the equity test, the court reviewing an equity decree test that unmindful of a policy behind and the reasons for whatever — is attorney that I’m about, attorney?

Archibald Cox:

You’re thinking of the sentence that limits the reviewing court?

Felix Frankfurter:

Yes.

Archibald Cox:

Yes.

Felix Frankfurter:

I don’t think — I don’t think you can — this is a dangerous analogy in view of the fact that you’ve got an administrative body with its scope of discretion and the specific restriction of Congress upon the reviewing part of the Court.

Archibald Cox:

We really jumped over that and that was one thing that concern me a little because I had been discussing this with you as if the point had been raised below and I want to make it very clearly of course that the fundamental problem here is that the point never was raised to the court.

Felix Frankfurter:

But don’t let me dislocate your arguments.

Archibald Cox:

Well, I was about to call the Court’s attention going back to the thread of my argument to Section 10 (e) of the statute because our first primary argument here is that section — that what the Court of Appeals did was in plain violation of Section 10 (e) as already interpreted by this Court.

Section 10 (e) is printed on page 26 of our brief.

The critical sentence is at the end of that big paragraph on 26.

No objection that has not been urged before the Board, its member, agent or agency shall be considered by the court unless the failure or neglect to urge such objection shall be excused, because of extraordinary circumstances.

Now in our view, the reviewing court has no — it’s improper for the reviewing court where the objection has not been raised before the administrative agency to apply what Justice Frankfurter called Justice Stone’s test, that is to say one never comes to the question unless the point has been saved by the respondent below.

And for that proposition, we rely first on the words in the statute, but second, on the square holding of this Court in the Cheney California Lumber case, where the Court held, I think, without any doubt, that it involved an objection to the scope of the order, that a Court of Appeals had no authority to cut down an order as too broad regardless of the record where the objection had not been raised in the lower court.

In that case, the objection to the scope of the order did not relate to the inclusion or any other employer.

It related to the type or kind of unfair labor practice committed, but it seems to me that there is no possible differentiation between the two cases in that respect.

Charles E. Whittaker:

Mr. Solicitor, even though the order went clear outside the Board’s power?

Archibald Cox:

No, I would — Cheney as I understand it, saved the case where the order went clear outside the Board’s power.

It spoke metaphorically, traveled wholly outside its orbit.

Charles E. Whittaker:

Yes.

Archibald Cox:

But I take it that that was a way of saying that where the Board did something, we would say was ultra vires, if it was in the case of an officer or a private corporation, that if, as I said earlier, it entered an order requiring the payment of the penalty, or if it ordered the employer to do something in relation to employees who couldn’t be covered by the Act because they were supervisors or executives, if it did something of that kind so that the order was of nullity because of lack of jurisdiction.

Charles E. Whittaker:

Or as Judge Aldrich says, the Court of Appeals has the function to perform.

It’s not just a whistling post.

Archibald Cox:

That’s true, but if the Board goes outside its jurisdiction, but I think if the objection has not been raised below, and the order is within the Board’s jurisdiction, I would — what it called a whistle post, but I think under the statute, it has an obligation to enforce the order.

Felix Frankfurter:

But as you indicated a little earlier, so many of or good many or perhaps in this case, the legitimacy of the order, the propriety of the order depends on allowable inferences to be drawn.

Archibald Cox:

That’s — that’s quite true, and I would like to —

Felix Frankfurter:

But it turns in so many instances —

Archibald Cox:

And I’d like —

Felix Frankfurter:

— almost in — in this kind of case almost always.

Archibald Cox:

Correct and that — and the inferences that can be drawn of course depend upon one’s general knowledge of the area and backdrop and this Court has held, I think not in Board cases but in Federal Trade Commission cases, that that Board’s generalized knowledge in special experience are something that may be taken into account in drawing this kind of interest.

And I think that’s another mistake with respect to Judge Aldrich that he made, that he says in the course of this opinion, the Board’s expertise has nothing to do with it.

He’s not going to pay any attention to that.

Felix Frankfurter:

Are you going to deal with his statement that the Board has a tendency in making needlessly, from his point of view needlessly broad order?

Have you got any (Voice Overlap)?

Archibald Cox:

Let me — let me proceed in this manner.

May I say just a word more about the Cheney case and about Judge Aldrich’s handling of it and then I would like to come to the point that you mentioned a moment ago, that the permissible order depends upon the facts and kind of unfair labor practice involved and to develop that a little.

Archibald Cox:

And in the course of doing that Mr. Justice Frankfurter, I will give the Court what information I have about the Board’s practice, and I think that will cover all the points.

I think that I should in fairness call attention to what Judge Aldrich said about the Cheney case.

He said that the Cheney case could not properly be cited for the proposition, that in the absence of timely objection by the respondent, the Court must enforce any order propounded by this Board.

In our opinion, the case stands for no such proposition.

The Court there was careful to point out that findings of record disclosed the course of conduct against which such order maybe the only proper remedy.

It was equally careful to point out that the situation would be different if the Board had patently traveled outside the orbit of its authority, but I have spoken to the second point.

With respect to the first point, I can only say that I think Judge Aldrich badly misreads the opinion in the Cheney case.

The passage to which he refers as I read it is one in which Justice Frankfurter will say that the scope of an order depended on what the record revealed with respect to the Court’s conduct.

He was making a general statement and that in the next sentence he goes on to say that where the point has not been raised below, the Court will not examine the particular record to see whether it does support the order that was made.

It should also be remembered that in the Cheney case, a (Inaudible) disagreed with the rest of the Court.

He did urge that the Court had an obligation to go to the particular record and if there were any doubt on the words, I think the fact that he was in disagreement with his colleagues would show that they were laying down a rule that was improper to go to the particular record, if the Board stays within its jurisdiction, within its power.

Now of course the reason for the rule is quite clear and seems to me all together sound.

The fact is that the scope of relief depends upon inferences to be drawn from particular facts and circumstances, and this is something in which one leaves the — trier of the facts should have an opportunity to develop them and the courts are benefited by the experience and analysis of the expert agency.

Let me take just a minute to illustrate this point in connection with the types of cases here before the Court.

It would seem to me that as a matter of really widespread knowledge without needing any special experience that an employer who engages in discriminatory discharges, another coercion when a union comes to organize his plant for the first time heretofore an organized plant, one can infer that his opposition is to union organization.

It would not normally be to organization by this particular union.

Now, I agree that it could be.

There may be situations where an employer has had some experience with the leaders of a particular local.

He may feel that some of the employers of the Textile Industry did but they didn’t carefully were organized, that they weren’t going to have clarity in this (Inaudible), but ordinarily, we know from experience that if the union — if an employer tries to deter union organization, the first time organizers come to this shop, it’s the union he’s to get and therefore, it’s proper to protect the employees through an order not to protect the organizational activities of this particular union, but which protects them in engaging in organizational activities on the part of any union.

Now with other unfair labor practices, the situation may be quite different.

The Communications Worker’s case which was before this Court, seems to me to be an excellent illustration of the situation where one could not infer that because of a particular violation related to a particular employer there was a likelihood of our generalized violations.

This was a case of violence by the Local Union of growing out of the strike against the telephone company.

The Local Union admitted members as members only the employees of the particular employer.

It dealt only with one employer.

What is more, it’s I think the matter of certainly common knowledge among those in the field that the outbreak of violence during a strike is very likely to be the product of a particular environment, and the fact that relations in one area have reached the point where violation — where violence breaks out, is not evidence that relations between that International Union and the AT&T all over the country have reached that point.

The International Union was named as the respondent, but its connection with its violence was very remote, and to have put it under the impediment of such an order all over the country, in quite different circumstances, would have been a very severe remedy indeed.

So I would say in that case, you see that the inference that — it’s quite different from the inference one would draw in relation to employer unfair labor practice.

Now it said in the — in a sentence, it would seem to me that in the case of a secondary boycott, if the union there, in order to reach the general contractor on a construction project, engages in secondary activities against the employees of one of the subcontractors, it’s a pretty fair inference that he has in particular about which secondary employer he has picked out, and that if he’s willing to engage in the secondary boycott in order to get the general contractor against the electrical contractor, well the next time he may do it against the plumbing contractor, like I thought spotting the case with pick pockets.

It’s not particular whose pocket he picks and if he picks my pocket what you want is to keep him picking any pockets in the future and not just not to pick my pocket again and I think this is very similar.

Now in this case, we don’t know what the facts were, but it certainly is very reasonable to suppose, that this belongs in the type of category that I illustrated by the employer unfair labor practice.

Archibald Cox:

In the first place, this case involves apparently maintenance of an illegal hiring hall, and certainly was of an illegal system for hiring.

And when — I think I can say never, but a union certainly, very seldom maintains a hiring hall for a particular employer.

It’s the nature of the institution that more than one employer will be involved.

Furthermore, the ILA Council of Local Unions was involved here, and it’s not at all unreasonable to suppose where this unlawful arrangement had existed for 10 years, that this was a policy of the council.

And that they hadn’t just singled Ochoa out as the employer with whom they would attempt to establish a closed shop and illegal hiring hall, that they were applying it to other employers on the Waterfront in Puerto Rico.

Indeed, the Court of Appeals in the First Circuit had evidence before it, not evidence in the record, but indications before it that that was the case because as I pointed out, there were two cases in this category before the Court, among the seven the union dissolved the Doris case as well as this one.

That was the same counsel of Longshoreman’s Union.

And the unfair labor practice was again the closed shop and hiring hall, so this was at least an indication that the suppositions I’m making are not unreasonable.

Now in a consent case, it seems to me that if those facts might well have existed, certainly the Board did not travel outside its property in entering the form of orders to which the employer had consented and we think that these reasons, the court please, that the judgment of the court below should be reversed.

I forgot to answer Justice Frankfurter, if I may go on for just a minute.

The Board — I have to break this down a little bit Mr. Justice Frankfurter.

My understanding is that the Board in the case of employer unfair labor practices has normally enjoined — ordered the employer to cease-and-desist from discouraging membership not only in the particular union, but in any other union on the theory I presume that I stated earlier.

In the case of secondary boycotts —

Felix Frankfurter:

Now, before you move on to this, what’s the bearing of — that our case would have been 362 Communications —

Archibald Cox:

Communications Workers case.

Felix Frankfurter:

What’s the bearing of that on what you say has been the normal practice?

Archibald Cox:

Well, that — that case has — I think it has a no bearing on the employer unfair labor practice, for the reasons I’ve tried to state earlier that one must read the case in the light of the realities of life and not the words of the order.

And as I tried to suggest, the reality is that violence in a strength is not an indication that there will be violence by all over the country if any strike against any employer by the same international union, and that is why it was cut down, not just because of the words.

Now, the case has had an impact upon the Board.

For example, in this situation in the Ochoa case, the practice was that if nothing was made of the point, the Board in a contested case and the regional office in a consent case, would usually issue an order like this one.

Since the decision — before the Communications Workers case, if the point was raised, either with the regional director or before the Board, and it would then inquire whether in the specific facts there was evidence that the union would attempt to maintain the unlawful closed shop with a number of employers or whether this was an isolated incident.

But the normal inference was this was the kind of unfair labor practice that usually isn’t confined to the union’s relations as one employer.

Since the decision in the Communications Workers case, the Board has — when it just handled it as a matter of routine, entered the narrower form of order, and has reserved the broad one for situations where there was some affirmative proof that the union had done or was likely to do this in relation to other employers.

Felix Frankfurter:

Now to the employer, what you said in effect — what you — what you have said in effect is that if an employer resists unionization, violence, taking violence out of the context of the discussion, if an employer resists union organization because he’s opposed to unionization, what you’ve said if I followed you is that one can draw, one should, indeed one should draw the appropriate inference if the discloses a bent of mind and not an ad hoc attitude.

Is that essence of it?

I don’t know how you phrase it but that’s the —

Archibald Cox:

That is what I would say if I was presenting it to the Board.

Felix Frankfurter:

Yes.

Now —

Archibald Cox:

Before a court I would simply say that this is a reasonable inference.

Felix Frankfurter:

Alright, now what I want to put to you is this, not only as hearing for the Board here but in view of your own specialized experience in these things, has the Board, and if it happens why it doesn’t, set forth that as a result of our experience, we’ve been sitting here all these years with an accumulation of experience, and we now generalize it and say that is what this mass of cases over the decades has shown, that when there is opposition to unionization not based on any particular reasons that the union is — is affiliated with this or that undesirable party, that is our experience that a specific case manifests a general attitude of mind.

Why did the Board make — make those declarations with appropriate persuasiveness so that the courts wouldn’t have to merely yield to guesswork on the part of counsel who represent them that that’s what’s in their mind?

Why don’t they put their minds on paper?

Archibald Cox:

Well, I think in this — this I’m afraid sounds like as if I was simply arguing but it isn’t.

I think one and a very large part of the reason is, that until the Communications Workers case, I don’t think anyone ever suggested that there was any question so far as the employer unfair labor practice went, so far as that situation went that the broad order was normally the proper one.

In other words, the question never was raised.

Felix Frankfurter:

(Voice Overlap) that the judges are naïve people.

Archibald Cox:

Yes, but — judges are also bound by the rule in Section 10 (e).

Felix Frankfurter:

Yes I know but it’s the way they apply it.

I’m not disagreeing with you.

I’m agreeing with you, but I’m suggesting that administrative agencies could be a little more articulate in the right places.

Archibald Cox:

Well, I quite agree with that and I wouldn’t have to be there if they’d be here if they have been and no doubt as a result of these cases even though they reverse we hope, they will address themselves more to this.

I should say one more word.

In saying that this has not been discussed and the Board has not set forth its reasoning in the employer unfair labor practice case, I do not want to give the impression that the Court has not set forth its reasoning in a large number of related cases.

It certainly has set forth its reasoning when the question was raised, but the question was, “How broad should the order be in relation to the types of conduct?”

It has also set forth its reasoning in numerous cases, about before and after the Communications Workers case, where it was dealing with union unfair labor practices, for example the secondary boycott case.

It has considered and explained why it thought that it was largely irrelevant who happened to be the secondary employer, who was caught in the squeeze in the press.

This was a weapon, a way of getting the primary employer, and therefore it was likely to be invoked against one secondary employer from another.

So I wouldn’t want to say that the Board had never directed itself to this problem because it hasn’t done it — in the employer interference with union organization case.

Now, I would agree, Your Honor that it could have done much more in this direction.

I think that there is a growing realization to that among some of the agencies as well as the Board and I would join with you and hoping that it would go further.

That concludes my argument in this case Mr. Chief Justice.