Radio & Television Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc.

PETITIONER:Radio & Television Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO
RESPONDENT:Broadcast Service of Mobile, Inc.
LOCATION:Point of picking up hitchhiker

DOCKET NO.: 61
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 380 US 255 (1965)
ARGUED: Mar 02, 1965 / Mar 03, 1965
DECIDED: Mar 15, 1965

Facts of the case

Question

  • Oral Argument – March 02, 1965
  • Audio Transcription for Oral Argument – March 02, 1965 in Radio & Television Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc.

    Audio Transcription for Oral Argument – March 03, 1965 in Radio & Television Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc.

    Earl Warren:

    Number 61, Radio and Television Broadcast Technicians Local Number 1264, Petitioner, versus Broadcast Service of Mobile.

    Mr. Goldthwaite you may continue your argument.

    J. R. Goldthwaite, Jr.:

    Mr. Chief Justice, Your Honors, in response to Mr. Justice Harlan’s question with respect to the finality of the judgment in this case, I pointed out in my argument yesterday Mr. Justice Harlan that this case was tried at final trial.

    The only thing which remained to be done after it was sent back to the trial court was the assessment of damages.

    All other issues had been disposed of.

    We urged a federal preemption in putting all of the evidence which was available on federal preemption so far as that federal question which is the only federal question in the case, the question of jurisdiction.

    The judgment of the Supreme Court of Alabama was final and under the rule of this Court and Common Laborers against Curry in which Your Honor concurred especially this Court determined that where the question of federal jurisdiction was the only federal question in the case that that could be brought up prior to the final disposition of the case in the state court.

    Now, the case is on appeal and is presently pending on the assessment of damages on some $3000 in the Supreme Court of Alabama.

    It cannot be tried before or be argued there and submitted for decision before sometime next month.

    Under the decisions of this Court both in injunction cases and in damage suits — so where federal or jurisdiction attaches to the case, state courts are controlled by the federal law, they — the — in the Borden case in Texas the Court held that the state court could not award damages because the subject matter was preempted and was within the competence of the Labor Board.

    All of those factors are present here.

    A determination of the jurisdictional question will conclude all federal questions in the case.

    Additionally, there are some old decisions of this Court to the effect that where the only judicial act which remains is the assessment of damages.

    The Court will go on and review the legal issues prior to the determination of that semi administrative judicial act.

    But in any event, the Curry case I think is determinative of the issue of concern which you asked and I don’t think in this case is any occasion to — for any cause for concern that the Curry case will cause problems or to review that issue.

    As I mentioned yesterday, the Congress in 1959 amended this statute to provide the state courts could take jurisdiction when the Labor Board had by rule of decision or by published rule declined to assert jurisdiction.

    Now, we pointed out to the Alabama Court and proved that there are cases of the Labor Board which under the facts of this case would dictate that the Labor Board affirmatively has jurisdiction over this cause and controversy.

    There are some older cases of the Labor Board which were relied upon by the respondent before the Alabama Court which were decided prior to 1958 which hold that there must be interchange of employees between corporations and common working conditions that is the same terms and conditions of employment.

    However, the Labor Board abandoned those cases and that approach to the integrated operational theory in 1958 before Congress amended the statute and in any event the statute specifies that the Labor Board may enlarge the area which in its discretion it asserts jurisdiction, may — it may not narrow it at the time of that statute.

    The rule was that the Labor Board would assert jurisdiction and it still has a rule to more recent decisions do not require interchange of employees or common working conditions so long as there is an actual exercise of control by the common ownership and management and there is no question about that on this record.

    The two owners control every material decision and act in matter of policy of the chain of radio stations which they call the whole Broadcast Service.

    Now, where it is shown that the Labor Board has issued decisions to the effect that it will assert jurisdiction of the controversy, we believe that the decisions of this Court did take that the state court should yield to the competence of the Labor Board and allow the Labor Board to decide whether or not it will assert jurisdiction of the particular controversy.

    I point out that the statute says that the Board may establish its rules, jurisdictional rules, the discretionary jurisdictional rules as it respects the volume of commerce by rule of decision or by published rule.

    The Congressional history while we did not feel that it was necessary because the statute is palpably clear as to what its intendment is.

    The congressional history indicates that some of the Congressmen, at least Mr. Thompson I believe of New Jersey, who spoke at length on several occasions and others spoke of a case by case approach on the part of the Labor Board.

    Which would indicate that the term rule of decision contemplates that unless it was palpably certain on the basis of previous jurisdictional expressions of the Board that the Board would approach the question of this jurisdiction on a case by case basis wherever necessary and that if there was any doubt as to the question of the Board’s jurisdiction the state court should yield and let the Board decide the question.

    In furtherance of the statute, the Board in 1959 adopted rules by which it will render advisory opinions and the rule specifically provide that either party to a case or a court may apply to the Board Foreign Advisory opinion as it respects its jurisdiction in any case of controversy pending in a state court.

    So that they’ll — are means whereby the state court without dismissing the case could direct that a determination of the Labor Board be procured as to the extent of his jurisdiction with respect to the particular facts and issue.

    And I would like to point out —

    Is there any affirmation by the Board?

    J. R. Goldthwaite, Jr.:

    Not in this case Mr. Justice Harlan.

    It seemed to us that it was quite clear that the Board’s rules applied and covered the factual situation and we did not feel that it was necessary and that they — neither the Court nor the respondent made any effort or undertook to get the Board to make the ruling in that respect.

    Here it is arguable, it’s more than arguable, it’s clear it seems to us that the Board does have jurisdiction and would assert jurisdiction and that therefore the state court should yield as respects to jurisdictional issue I would like to point out that this case is representative of those cases.

    The Court mentions that in labor cases the injunction is likely to terminated the dispute and be determinative of the rights of the parties without any effective right of appeal.

    In this case and in companion cases where injunctions have issued we argued this case, it was not argued but it was submitted to the Supreme Court of Alabama in the fall of 1963.

    We argued a companion case before this case was submitted in which an injunction is outstanding in the Supreme Court of Alabama still has not issued a decision in that case.

    Meanwhile, the federal rights of those people have been completely subjugated to the Alabama dictate of the injunction.

    Thank you sirs.

    Earl Warren:

    Mr. Darby.

    Willis C. Darby, Jr.:

    Mr. Chief Justice may it please the Court.

    The question that the Alabama Supreme Court actually decided which to me was a question of pleading.

    The Alabama Supreme Court in substance held that the petitioner here had not properly pleaded the necessary facts or even conclusions for that matter for the Alabama Supreme Court to open Pandora’s box if we might call it that and look into the decisions of the Labor Board in order to determine whether or not the Labor Board decisions properly applied by the Alabama Courts to determine their own jurisdiction would have held that this particular employer was a single employer or whether or not it — and other employers that were so related would be considered for one, for jurisdictional purposes.

    In connection with that in the pleadings and we think that’s important.

    On page 6 of the record, paragraph 2 of the plead to the jurisdiction of the Court actually foreclosed in the Alabama Courts the issue of whether or not the plaintiff was an employer alone within the jurisdiction or whether or not the plaintiff in other companies that had a similar stock ownership was the employer because in the plead to the jurisdiction the petitioner here admits the complainant’s Broadcast Service of Mobile is an employer within the meaning of the National Labor Relations Act as amended.

    Now, had they wanted to prove to the Court or properly raise the issue in the Alabama Court, they should have plead that the respondent there and the petitioner here was not an employer within the meaning of the National Labor Relations Act that the real employer was by corporation, what they have urged all the way through.

    But there at the very outset of the pleading we find that they admit that Broadcast Service of Mobile was an employer within the meaning of the National Labor Relations Act.

    Then it follows very clearly from the evidence presented the Broadcast Service of Mobile did not do $100,000 worth of business a year.

    That’s not disputed.

    They were doing about 60.

    There’d only been in existence for a very few months — oh, actually for a very few weeks when the injunction was issued.

    But there you have a question of pleading.

    Arthur J. Goldberg:

    (Inaudible)

    Willis C. Darby, Jr.:

    That is true, Justice Goldberg.

    They didn’t eliminate the paragraph two that we have referred to.

    They added more to it and perhaps the Alabama Courts are a little improper in the way that they don’t look as they do in the federal courts.

    We have strict pleading in Alabama.

    I don’t personally like it.

    A lot of the lawyers there don’t like it.

    You can get yourself into a lot of trouble by the strict pleading.

    They amended it.

    Willis C. Darby, Jr.:

    They perhaps tried and perhaps this Court would consider that they made a effort that was strong enough, but we would submit this, that if this Court made the determination that they made a strong enough effort and that the laws of the United States in applying would also cover the laws of pleading then the Alabama Supreme Court should certainly have an opportunity to perform its function in the federal system and that is for it to pass upon the evidence that was presented below.

    They get to apply in the first instance the rules of the National Labor Relations Board and then if it makes a mistake in such application then it would be proper perhaps for this Court to review it.

    But the question being reviewed at that time would be whether or not the Alabama Supreme Court properly waived the evidence in the court below and whether or not the Alabama Supreme Court properly applied to the Labor Board and we submit the decisions of the Courts of Appeal.

    Now we have two sets of decisions that —

    Arthur J. Goldberg:

    (Inaudible) as I read this record, you filed an original complaint and they filed a plea to the jurisdiction, and then you filed an amended complaint, is that correct?

    Willis C. Darby, Jr.:

    That is correct.

    Arthur J. Goldberg:

    And they filed an amended plea to the jurisdiction.

    Willis C. Darby, Jr.:

    They amended their plea —

    Arthur J. Goldberg:

    Plea —

    Willis C. Darby, Jr.:

    — to the jurisdiction and expanded it.

    Arthur J. Goldberg:

    And it — then the matter went to trial on the amended pleadings, is that correct?

    Willis C. Darby, Jr.:

    That is correct.

    Arthur J. Goldberg:

    And the chancellor who heard the evidence held that the Labor Board — that the Labor Act preempted the case and he declined to issue the — or he — the client issued the injunction.

    Willis C. Darby, Jr.:

    That is correct, he dissolved —

    Arthur J. Goldberg:

    (Voice Overlap)

    Willis C. Darby, Jr.:

    — his temporary injunction.

    He —

    Arthur J. Goldberg:

    He —

    Willis C. Darby, Jr.:

    — reversed himself.

    Arthur J. Goldberg:

    — and he did not therefore hold the pleadings were improper.

    The issue was tried and presented to him and the facts were then planted, is that correct?

    Willis C. Darby, Jr.:

    I would assume that he heard it on the pleadings when he heard the case.

    If he did so he did not follow the Alabama rule which we say is very straight.

    I have no questions about the fact of what he held and having held what he did hold he must have considered the evidence that was offered.

    Arthur J. Goldberg:

    Yes.

    Willis C. Darby, Jr.:

    Or we would submit that he —

    Arthur J. Goldberg:

    Because otherwise if he ought to consider was the original plea he would’ve had to go against under the Labor Board jurisdictional rule who had the rule against the plea.

    Is that correct?

    Willis C. Darby, Jr.:

    We think that he went a little — he went far in what he did on the basis of the pleadings before it.

    Arthur J. Goldberg:

    Yes.

    Willis C. Darby, Jr.:

    Now, the Alabama Supreme Court did not purport the facts upon the merits of the case or actually upon the jurisdiction of the Alabama Court because they specifically said that they did not pass upon the merits.

    With respect to the jurisdiction they cited in the case they relied on was strictly a case of pleading.

    They say every intent (Inaudible), the jurisdiction must be given on a court or general jurisdiction in the state.

    And they sent it back on a case which clearly referred only to pleading as distinguished from looking at the facts.

    Arthur J. Goldberg:

    Where did you —

    Willis C. Darby, Jr.:

    Now —

    Arthur J. Goldberg:

    Where do you read the Alabama Supreme Court the hold that they disregarded the amended jurisdictional plea because of state pleading (Voice Overlap)?

    Willis C. Darby, Jr.:

    They’d — the right — though — the case that we relied on for that in the — it’s the same case that the Alabama Supreme Court relied on.

    Oh, it’s one of the carriage cases I believe.

    It’s a case involving the Teamsters Union wherein there again there was a question of pleading and they held that the plea to the jurisdiction was not proper.

    Arthur J. Goldberg:

    But I —

    Willis C. Darby, Jr.:

    Oh, its —

    Arthur J. Goldberg:

    Maybe I read the decision wrongly but if you look at page 409, I do not read that it indicate they were passing on a matter of pleading.

    I read it rather they indicate it that the holding of the Court that the jurisdictional rule of the Labor Board that they would respect is only the $100,000 rule for — by the employer.

    Willis C. Darby, Jr.:

    Well, we are looking —

    Arthur J. Goldberg:

    Is that wrong?

    Willis C. Darby, Jr.:

    That is correct.

    They also held that what they are saying Mr. Justice Goldberg is the pleadings didn’t put it in issue.

    They go right before that on page 409 or in the first full paragraph.

    It is equally clear that the law of this state is settled to the effect that every reasonable intendment not contradicted by the face of the pleadings will be made in favor of the jurisdiction of the Circuit Court.

    And that’s where we say you go back to paragraph 2 where they admit a judicial admission if you please.

    If they admit that the Broadcast Service of Mobile is an employer, the Broadcast Service of Mobile is the employer, there is no other employer.

    Now —

    Arthur J. Goldberg:

    What does the Labor Board holds, suppose you file a charge against the employer such as here and then you in support of that charge and jurisdiction proved that that employer is part of an integrated larger operation.

    Does the Labor Board dismiss the charge because you have not brought the other employer in?

    Willis C. Darby, Jr.:

    No, the Labor Board would not dismiss the charge on that but —

    Arthur J. Goldberg:

    Isn’t that the determining factor then in this case?

    Willis C. Darby, Jr.:

    We don’t — we think it’s a practice of procedure.

    We do not think that is the determining factor in this case.

    It might be on this partic — it could be argued on this particular point.

    Willis C. Darby, Jr.:

    Actually, we believe that had the Labor Board considered the matters or had any court considered it in view of the Labor Board decisions, if the Labor Board decisions adequately support the fact that the Labor Board itself would not have taken jurisdiction over this matter and we — but for ourselves particularly on the decisions of the Courts of Appeal wherein the issue of what a joint employer under the National Labor Relations Act has had quite a bit of discussion.

    Arthur J. Goldberg:

    That is a separate point.

    Willis C. Darby, Jr.:

    That’s a separate point.

    The procedural point but even on the procedural point if the Alabama Supreme Court has major — made a mistake procedure wise then under those circumstances we would submit that it should be given an opportunity to examine the record or in view of what the law is rather than what it applied if it made that mistake.

    Arthur J. Goldberg:

    The difficulty is I think and perhaps maybe I’m not reading the Illinois — the Alabama Supreme Court correctly.

    The difficulty is that if you read this opinion I think all that it says is that since the plea of the union did not show that this particular employer, the employer (Inaudible) did business of more than a $100,000, that the other evidence that was offered and the other plea was irrelevant by the Court’s standing.

    And of course your opponent says that the Court had no right to say that under the preemption doctrine.

    Willis C. Darby, Jr.:

    Well, we —

    Arthur J. Goldberg:

    Is that —

    Willis C. Darby, Jr.:

    We substantially based that decision on what the pleadings set forth and of course we don’t know what basis they actually decided it on but that appears to be appropriate.

    We frankly argued the other issues before the Court and we would have been very happy for them to have ruled on and we wish that they had on an ultimate ground but of course they did not.

    Hugo L. Black:

    Do you think if both plea — parties together could waive the jurisdiction of the Labor Board?

    Willis C. Darby, Jr.:

    We don’t think anyone could waive the jurisdiction of the Labor Board.

    The Labor Board either — would’ve either had jurisdiction or it would not have had it.I don’t think you could —

    Hugo L. Black:

    Are you not — factually basing your point, the waiver by saying if they file a second — court didn’t give any — paid attention to this second statement about — of the jurisdiction, the amendment on page 65.

    Willis C. Darby, Jr.:

    Mr. Justice Black we would think that neither party could waive it or perhaps the Alabama Supreme Court should, as we say we argued it before them.

    Should’ve gone further and considered that matter.

    Hugo L. Black:

    But it —

    Willis C. Darby, Jr.:

    But it’s not a question of waiving.

    Now, it’s possible that —

    Hugo L. Black:

    Is it a federal question or state question as to whether the courts of Alabama can refuse to consider the record that what facts that are shown on the record that would show that the Labor Board has jurisdiction.

    Willis C. Darby, Jr.:

    We would think that as a procedural matter that the Court of Alabama if their procedural rules are reasonable and they are properly applied that a party of litigating a federal question in the state court would have to follow the state procedure as long as it was not unreasonable.

    Now here the basis of —

    Hugo L. Black:

    But the question here is whether they could litigate that federal question in a state court or whether they could litigate it at all —

    Willis C. Darby, Jr.:

    We (Voice Overlap) —

    Hugo L. Black:

    — by the record.

    Willis C. Darby, Jr.:

    As a matter of fact it was litigated in the Alabama Supreme Court and in the Alabama Supreme Court — the respondent here had two arguments.

    One was that the — that under the interpretation of 14 (c) (1) when it referred to a class or category of employers that meant what it said it was not proper to go beyond at least what the Act itself said as to a class or category of employers that it would be improper to look into the business of these alleged affiliated organizations.

    Now we think that the Alabama Supreme Court did apply federal law.

    It may have misapplied federal law.

    Willis C. Darby, Jr.:

    But nonetheless we think that it did apply federal law and we certainly Your Honor aruge (Inaudible) cited federal law insofar as to the interpretation of 14 (c) was concerned but we also relied on state law insofar as the raising of the federal issue was concerned in the state court that we think that perhaps they failed to properly raise the federal issues.

    Now when the case was remanded by the Alabama Supreme Court or under te Alabama Pleading Rules they would’ve had an opportunity to go in and replead that a — at that time after having the decision of the Alabama Supreme Court could have pled properly.

    At least whether properly or improperly they could have plead it as the Alabama Supreme Court says they should have plead it if they wanted to raise the issue —

    Hugo L. Black:

    (Voice Overlap)

    Willis C. Darby, Jr.:

    — but they did not do it.

    Hugo L. Black:

    Those have — been a federal statute that a state court shall not try any cases that the record shows that the Labor Board have jurisdiction.

    Willis C. Darby, Jr.:

    But we think there —

    Hugo L. Black:

    Would that have changed your argument?

    Willis C. Darby, Jr.:

    Oh, that would not have changed our argument Mr. Justice Black because we would say that the state court in the first instance had a right and the duty to determine whether or not the federal statute or the federal law was applicable.

    What we have here is a effort by the Congress to eliminate the no man’s land that was created and Congress had said that where the Labor Board declines to assert jurisdiction nothing in the Act in substance will prevent the state court from asserting jurisdiction.

    Well, the way the Act itself is written it is obvious that Congress didn’t intend to send the case first to the Labor Board but it intended as the way it’s written for the state court to consider the applicable federal law and to make the initial determination of whether or not the Labor Board had declined to assert jurisdiction of the particular type of case that was there before the Board, there before the Court.

    And we think that the state court would always be required under any such law to determine its own jurisdiction.

    Of course in doing that it would have to apply federal law.

    Hugo L. Black:

    Do you not think or do you think that the state court have to consider this case on the basis — the same basis that it would has been the federal statute which says it’s — if this arguably goes before the Labor Board, you have no jurisdiction.

    Willis C. Darby, Jr.:

    Well, no Your Honor.

    We do not think that because we do not think that the arguable task of this Court applies to a case under 14 (c).

    And the reason for that is that if you leave the arguable test in, you had — still have a no man’s land because whenever you get a closed case the state court deny.

    Whether the Labor Board will or will not act would take a long period of time as the parties are not going to know what the law is during that period of time.

    We think that if the case is arguable the argument must be made to the state court and the state court applying the federal decisions of the Federal Courts of Appeals or this Court and of the National Labor Relations Board would make the determination of whether it had jurisdiction to proceed.

    And then after it had made a final determination of course if it made a mistake it could have been appealed to this Court.

    You have the — you may even have the situation where the courts would differ.

    You have been (Inaudible) of a case below where the National Labor Relations Board considered the labor dispute that they held there was no violation of Section 8 (b) (4).

    Along came a jury trial (Inaudible) — both cases were appealed to the same Circuit Court and the jury disagreed with the Labor Board and they awarded substantial damages to the employer but you had two different fact finding agencies.

    In here the Act specifically says that nothing in the Act shall prevent the state court from asserting jurisdiction.

    We think that is another confusion that we have here is that — or the words that are used in the statute had said.

    The statute says (Inaudible) — refers to a labor dispute.

    The Solicitor General Cox had said in an article that he wrote while he was a professor at Harvard Law School, the question is probably made more difficult by the fact of a bad choice of words on the part of Congress.

    The Congress used labor dispute or perhaps what they should have used was unfair labor practice proceeding or a representation proceeding and that explains the case that much puzzled us involved here, the Jemcon Broadcasting Company case.

    There a petition was filed with the National Labor Relations Board concerning a radio station in Mobile, Alabama.

    The National Labor Relations Board said they didn’t do a $100,000 worth of business so they dismissed it.

    Willis C. Darby, Jr.:

    So the union put up a picket line and the company went in and obtained the state court injunction.

    It didn’t look like you could be much clearer because we had the decision of the National Labor Relations Board saying they would not exert jurisdiction over the station.

    Then they asked for one of these advisory opinions and of course had the petition, they didn’t want to do the advisory opinion they could have asked for it from the Board.

    They asked one advisory opinion and the Labor Board comes along and says, “We will assert jurisdiction because they wrote to some advertiser, the Delchamps which was an advertising company and they would have asserted jurisdiction over Delchamps”.

    So what happens next?

    A union who had come here and organized the employees spent in this labor dispute filed a petition with the Board and they say, “We’ll hold an election for us”.

    Then the Board had said it will assert jurisdiction.

    What did they say when they filed that petition, it the Board itself that said, they said, “We will never assert jurisdiction because there’s not a $100,000 worth of business involved”, and they cited their own advisory opinion which showed that the Board evidently applies the same criteria that the question of a labor dispute — they don’t look at it as a labor dispute they look at it as a question of whether or not it’s a representation question or whether or not it’s an unfair labor practice question.

    Frankly it looks hard to understand what the Board had done in that particular case because it did appeal very inconsistent but once you — if you use Professor Cox’s definition of what labor dispute means in the Act you’d come out with something that at least you can understand what the volatility that.

    With the respect to the question of jurisdiction here, this case is quite different from the construction in General Labor Union case for this reason.

    We don’t think that anyone before this Court including the United States doubts that the Supreme Court of Alabama had a right to determine its own jurisdiction under Section 14 (c).

    In the construction in General Labor Union case the Court was particularly careful to point out that the issue for review there did not pass upon the question of whether the Court had erroneously performed its function and under the federal law the only question there was whether the Court had any power whatsoever to make the determination.

    Under 14 (c) here the state court had the power and the duty to make the determination, the question of whether it correctly made it and therefore we would submit the General Labor Union would not apply.

    And that what would apply would be the general rule that this Court will not take a piecemeal appeal or — and the case is not properly here.

    The Court — wasn’t there a secondary boycott aspect to this case?

    Willis C. Darby, Jr.:

    This particular case?

    Yes.

    Willis C. Darby, Jr.:

    Yes Your Honor.

    What bearing does that have under (Voice Overlap)?

    Willis C. Darby, Jr.:

    We submit that it has none for this reason.

    The secondary boycott provision of this case is set forth.

    The union came in and they said, We contacted and we wrote all of these people who were perspective advertisers over this — over this radio station”.

    There’s definite evidence with respect to one Hams (ph) which was in the retail appliance business, Hams’ jurisdiction, or Hams does not meet the jurisdictional requirements of the Board because it’s a retail enterprise and he did substantially less than $500,000 worth of business a year.

    With respect to the Delchamps that they wrote to there is no evidence in the record that Delchamps ever advertised over this radio station.

    If you want to take their secondary boycott provisions and have an elimination of state jurisdiction or what the union here contends it would be very easily to do because if you take a blind man with a small concession in a post office or perhaps we ought to get him away from the United States to keep that from being involved he is going to buy his goods from someone on a national basis although his purchases would be very small.

    If the union can destroy state jurisdiction by merely writing a letter to someone from whom he buys or if you please, from someone he might buy from because it’s not shown that these people that they rely upon would get themselves.

    The Act had shown that the people they rely upon did business with the station then you would eliminate easily the entire Section 14 (c).

    It would be a very unusual situation where the union in any case could just write one letter to a supplier, a potential supplier or a potential customer and thereby destroy the state court’s jurisdiction.

    The —

    What bearing do you think the Board’s position in this Court has on the matter, they tell us that they would take jurisdiction?

    Willis C. Darby, Jr.:

    What the Solicitor General says and they support their position that they would take jurisdiction.

    We don’t think that that means that the Board itself if it considered that it would take jurisdiction I’m sure that the matter did not go for — go before the Board.

    There was no opportunity to argue it before the Board.

    They cite cases saying if they would take jurisdiction we submit that even on the basis of the cases that they cite that we have referred to each of those in our brief that they are quite different from the case that we have here.

    We must — in looking at what the Board would do under the Board’s decisions we must consider that there are two sides of a coin.

    Under some businesses which are related, the Board would take jurisdiction.

    And under other businesses that were related, the Board would not take jurisdiction.

    I wouldn’t disregard the (Inaudible)?

    Willis C. Darby, Jr.:

    We submit that the — or under the method in which the Labor Board has established the general counsel is a separate department or a separate and independent agent insofar as the Board is concerned.

    I don’t think that the Solicitor of the Board is there and we would hardly submit that if the —

    Tom C. Clark:

    The problem is taking the jurisdiction, does the general counsel issued the complaint?

    Willis C. Darby, Jr.:

    The general counsel, he initially answers to the full complaint and he would make the initial determination except that it’s the general counsel’s employees under delegated authority that make the initial determinations.

    And we of course would expect the Court to consider what was said by the Solicitor General but we would not consider that this Court would be bound by what was said by the Solicitor General.

    If we did that we would be in the position of someone else making a decision of where the parties to be affected by the decision were not even before the particular party involved and had no opportunity to present their views.

    We have a dispute — disputed questions of fact here that must be decided by someone initially.

    Going to the Labor Board decisions which in sub —

    Tom C. Clark:

    (Inaudible)

    Willis C. Darby, Jr.:

    The test is a jurisdictional test, not — nothing whatsoever to do with the merits —

    Tom C. Clark:

    Yes.

    Willis C. Darby, Jr.:

    — before the Board.

    We make no argument as to what the Board would do with the case.

    We do make an argument that the Alabama Supreme Court on the basis of the Board and Court decisions was justified or would be justified and so would this Court, if this Court undertakes to reach the — this — reach that point would be justified in the holding that the Alabama Court had jurisdiction.

    What the Labor Board in its own annual report and they have not retracted it they say this question turns on the sufficiency of integration of the amount of integration between the various companies involved.

    They rely on four principal factors.

    One is interrelation of operations which means in substance that one company sales of purchases from the other or along the same lines that controls the source of the other’s business where it can close it up if it wants to.

    Now they rely primarily here on some kind of control.

    Or in any case where you have a subsidiary and in any case where you have a pers — well, one person owns a stock in a company, he obviously has control over it.

    But the Labor Board does not see him fit to rely on that and where it has, the Courts of Appeal have reversed it.

    There’s a larger question involved here insofar as commerce is concerned and that is a question of what is going to happen if a secondary boycott is involved.

    And Congress sought to draw the line narrowly with respect to a secondary boycott if all of these employers or one, the jurisdictional purposes, certainly there would be one, a secondary boycott purposes.

    Willis C. Darby, Jr.:

    Under such circumstances we presume if that was true the union could put his picket lines up around all four of the stations if it wanted.

    That would be quite contrary to what Congress intended because Congress on 8 (b) (4) attempted to draw the line narrowly and to keep one employer’s business from affecting another insofar as a labor dispute was concerned.

    In the Courts of Appeals where they have reviewed them the matter or particularly on those secondary boycott cases they have held in situations similar to the one that we have here that there is no one employer rather than several and it’s a secondary boycott provisions would apply certainly that was the intent of the Congress.

    Here, if the Court said put them all together, that means that the union with a dispute with one can certainly in this record it’s not been shown how that dispute affected any of the other stations.

    But the union with the dispute to one that take after all — after before them.

    We submit first if the Alabama Supreme Court made a mistake in applying federal law that the case should be returned to that Court so that it might in the first instance examine the evidence to determine what the evidence was first or the facts in the case were and then apply Labor Board and Court of Appeal decisions to that to determine whether or not it would have jurisdiction under 14 (c).

    We further submit that if this Court determines to consider the merits of the action and that is to analyze the evidence in the record to make an initial determination on what that evidence meant and in that event on the cases that we have cited and we’ve referred to quite a number of them in many recent cases involving dissent from members of the National Labor Relations Board and the dissents at least say that so far as the Board is concerned the Board still looks to determine whether or not there has been interchange of employees at the same working conditions in the various places something that everyone admits is not here.

    The trial court found that the day to day operations were controlled completely by the manager of the radio station.

    Anyone that owns a small business is going looking on it every now and then no matter who he has for the manager to see that its running right.

    And if he is not the type of man that will speak to the employees then it would be most unusual.

    But the day to day operations, the operations relied on by the Courts of Appeal and by the Labor Board in most of their cases is admittedly run by the manager of the station.

    And the stations do not have any interrelationship in any form whatsoever that the Board has relied upon and we submit that if the Court considered the facts of the case that on the basis of the facts properly applied that the Labor Board would not have asserted jurisdiction and this employer belongs to one of that class wherein the states were free to act and apply state law.

    Thank you.

    Earl Warren:

    Mr. Goldthwaite.

    J. R. Goldthwaite, Jr.:

    With respect to this matter of pleading as I construe the Alabama decision.

    What they were saying was that the only rule they would rely upon was the $100,000 single employer rule and that any other rule whether it was pled or not wouldn’t satisfy them and says we didn’t plead that rule that was the only thing they were willing to consider.

    And therefore they said that will — not only the pleading but the evidence fails to exclude Alabama jurisdiction.

    But of course when you get into the integrated operation, evidence and the pleadings we fully raise the federal question.

    In that connection I’d like to call the attention of the Court to a case which is not mentioned in our brief which is the case of Rose Staub against the City of Baxley in which the Georgia Court ruled that the constitutional question was not properly raised and would not consider the constitutional question.

    This Court granted certiorari and said well maybe if one raised properly in Georgia but it’s a federal constitution in spite of this Court, the question is sufficiently raised and this Court did consider the constitutional question.

    Tom C. Clark:

    They —

    J. R. Goldthwaite, Jr.:

    So — sir?

    Tom C. Clark:

    (Inaudible)

    J. R. Goldthwaite, Jr.:

    I don’t have it Mr. Justice Clark.

    I will get it if you —

    Tom C. Clark:

    What’s the title of the case?

    J. R. Goldthwaite, Jr.:

    Rose Staub against the City of Baxley —

    (Inaudible)

    J. R. Goldthwaite, Jr.:

    Yes sir.

    (Inaudible)

    J. R. Goldthwaite, Jr.:

    Mr. Justice Harlan, in further response to your question about us supplying for an advisory opinion I’d like to call the attention of the Court to the fact that in the petition for certiorari we cite these other companion cases which are still pending in Alabama Courts in which injunctions are outstanding.

    In the case which is now in the Alabama Supreme Court we applied for an advisory opinion and gotten the advisory opinion from the Labor Board stating that the Labor Board affirmatively would assert jurisdiction in a set of facts substantially identical to the present case.

    We pled in that case the Labor Board’s decision attached it to our plea to the jurisdiction.And the Alabama Court totally ignored the Labor Board’s advisory opinion.

    They said, “Well, the Labor Board is not going to advise us in effect”.

    And just — in spite of the advisory opinion they issued the injunction and that injunction is still in effect and has been in effect over two years.

    Arthur J. Goldberg:

    As I understand this (Inaudible) this case to the question of whether the (Inaudible) argue the rule — applies in this situation, it’s all — you say that on the face of it, it’s clear that the board had jurisdiction.

    (Inaudible)

    Arthur J. Goldberg:

    Yes sir, I think it is.

    But I think the proper rule is on the Section 14 (c) that if it is palpably clear that this Labor Board under existing rules of decision or publish rules, the rules of decision are all we have would not assert jurisdiction.

    The state courts have the authority to so determine and to assert jurisdiction.

    On the other hand, if it’s palpably clear that the Labor Board would assert jurisdiction the state court would be obligated as a matter of law to so find but in any situation where it is arguable that the Labor Board would assert jurisdiction on the basis of reasonable judicial argument then I think it’s incumbent on the state court as this Court said in the Garmon case to yield to the primary competence of the Board and let the Board have an opportunity to rule on a case to case basis.

    I don’t think the Court ought to abdicate its judicial responsibility as the Wisconsin Court in the Harron (ph) case almost did.

    That’s now pending on a petition for certiorari here.

    But I think where it’s arguable that the Labor Board does have jurisdiction then the Court should yield to the primary competence of the Board.

    Thank you sirs.