RESPONDENT: Alberta Schermerhorn et al.
LOCATION: United States District Court for the Eastern District of Louisiana
DOCKET NO.: 13
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Florida Supreme Court
CITATION: 375 US 96 (1963)
ARGUED: Apr 18, 1963
REARGUED: Oct 16, 1963 / Oct 17, 1963
DECIDED: Dec 02, 1963
Archibald Cox - Solicitor General, Department of Justice, by invitation of the Court, 373 U.S., at 757, argued the cause for the United States on the reargument, as amicus curiae, urging affirmance
Bernard B. Weksler - argued and reargued for the respondents
S. G. Lippman - argued and reargued for the petitioners
Facts of the case
Media for Retail Clerks International Association, Local 1625, AFL-CIO v. Schermerhorn
- Oral Reargument - October 17, 1963
- Oral Reargument - October 16, 1963
- Oral Argument - April 18, 1963
Audio Transcription for Oral Reargument - October 17, 1963 in Retail Clerks International Association, Local 1625, AFL-CIO v. Schermerhorn
Retail Clerks International Association, Local 1625, Petitioners versus Alberta Schermerhorn.
Mr. Lippman you may continue your argument.
S. G. Lippman:
Mr. Chief Justice and may it please the Court.
Yesterday, I sought to develop the argument that there is a complete integration between Section 14 (b) and Section 8 (a) (3), point being that but for the proviso in Section 8 (a) (3) setting forth the conditions under which a union can obtain a valid union shop or a union security arrangement; but, for that proviso, it would otherwise constitute an unfair labor practice.
I sought to point out that 14 (b) was as much a proviso as that which is explicitly stated in 8 (a) (3).
It would, obviously, seem quite anomalous for Congress to grant the authority of the States to outlaw, as a matter of substantive law a union shop and then at the same time to say that this is permissible under the proviso.
I think any fair reading would indicate as this Court has I think indicated in the first Schermerhorn case that there is the complete interrelationship between these sections.
Beyond that I endeavor to point out that when one contemplates the punitive aspects of state enforcement, it would seem utterly incomprehensible and beyond belief that Congress, which attempted to set out this entire scheme of labor relations, would have permitted that kind of conduct.
At the point of adjournment, I stated the position as I understood it of the government and we find that we are not as far apart as we thought we were.
The government agrees that all conduct prior to the actual execution of the contract, the strikes and picketing and boycott which may take place is preemptive and is exclusively within the jurisdiction of the federal government and I believe it must take that position because of the major thrust of the Curry case.
I do believe, however, that the strikes and picketing and the execution are so much part of the same ball of wax that it seems almost arbitrary to draw the line at that particular point.
Of course, if my -- if our first contention is correct as I believe it is, that the execution of a law in violation of a state right to work law constitutes an unfair labor practice, I think that would be dispositive of the issue.
On the other hand, let's examine some aspects of the government's position, because in our mind the administration of the execution on the application is so thoroughly related to other provisions of the Labor Act that one would be faced with continuous conflicts in substance and in administration and would take this Court years to unravel the puzzle.
The first point, the actual exe -- seeking to enjoin the actual execution of a contract alleged to violate the state right to work law would immediately constitute interference with the collective bargaining process.
At what point does the state say that there is a threat that a collective bargaining agreement violative of its law is about to be executed.
This, of course, must look to the actual processes involved and the collective bargaining involved.
Beyond that, we have seen how zealous the States are in finding violations of its right to work law.
Indeed as this Court has observed in the Agency Shop Case, the Schermerhorn Case, it would have been best in this situation where there was a question of whether or not the agency shop falls within the proviso to permit the federal government in the first instance to make that determination.
We have even a more dramatic illustration of that in connection with the hiring hall situations.
The State of Texas, the Attorney General, and some of lower Courts have held that a hiring hall violates its right to work laws.
It has enjoined the picketing and the strikes in that connection.
A year-and-a-half later, the Labor Board in the case, which we cite in our brief, said that this is a permissible activity, but the union, of course, is still enjoined.
Now, what about a question of a discharge under a union security contract and a right to work state?
A complaint is filed saying that the individual's discharge because he refused to join or remain a member of the union.
The defense of the union and the employer is that he was not discharged for that purpose, but he was discharged pursuant to his seniority clause in the contract.
This raised the question of intent and the surrounding circumstances.
The very kind of problems that Congress, I believe, has left to the expertise of the Board.
If the Court should find -- a State Court should find that the discharge was unlawful it could be wrong, the Board might have come to another conclusion.
The Court thereby has interfered with the collective bargaining process (Inaudible) and the Court has interfered with Section 7 rights, because this contract was negotiated pursuant to Section 7.
The point being that at every stage in the administration of an executed contract, you invariably come into conflict with the scheme of the federal law.