Retail Clerks International Association, Local Unions

PETITIONER:Retail Clerks
RESPONDENT:Lion Dry Goods
LOCATION:Allen-Bradley Clock Tower

DOCKET NO.: 73
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 369 US 17 (1962)
ARGUED: Jan 17, 1962
DECIDED: Feb 26, 1962

Facts of the case

Question

  • Oral Argument – January 17, 1962 (Part 1)
  • Audio Transcription for Oral Argument – January 17, 1962 (Part 1) in Retail Clerks International Association, Local Unions

    Audio Transcription for Oral Argument – January 17, 1962 (Part 2) in Retail Clerks International Association, Local Unions

    Earl Warren:

    Mr. Lippman, you may continue your argument.

    S.g. Lippman:

    Thank Your Honor, Mr. Chief Justice.

    I’d like to point out another basic problem raised by the lower court’s opinion.

    The Court will observe that 301 is not limited to suits between employers and labor unions, but also provides for the enforcement of contracts between labor unions themselves.

    The court of course disregarded that feature and in no ways seemed to be troubled by that aspect, but to me, it is a clear expression that Congress intended to cover the entire field of labor contracts which in anyway contribute to stability in Labor Affairs and indicated a broad concept must be given to the term labor contracts, and it was not to be a limited application and that it seems to me was quite indicative by the fact that Congress covered contracts between labor unions.

    Another difficulty with the lower court’s opinion, if I haven’t said enough, is that the lower court would provide that every suit for the enforcement of a contract would inevitably raise a representation question as to whether or not, the union suing or being sued was in fact the bargaining agent and this —

    (Inaudible)

    S.g. Lippman:

    Well, assuming that you have the recognition —

    (Inaudible)

    S.g. Lippman:

    Well, if the — if in fact it is a jurisdictional concept as the lower court holds, that you must be the exclusive bargaining agent, then jurisdiction cannot be granted surely by words, saying you are the exclusive bargaining agent.

    At least this is one of the problems which has raised because you — mind you, we’re talking about —

    I have difficulty with it (Inaudible).

    S.g. Lippman:

    — yes.

    I have difficulty with that too and — but this is the problem which was raised and every enforcement proceeding could very well become converted into a representation proceeding to term with in fact, and of course this would definitely be in derogation of the Labor Board’s processes to exclusively determine representation questions.

    It seems to me that Congress was not concerned with any of these problems, but Congress was concerned with the idea of placing sanctions and behind agreements which carrying out any national labor policy and this is the way to settle disputes and if the federal court should be open to enforce these agreements and it was — and it is a broad statute in that respect.

    The lower court in no respect paid heed to what I believed to be national policy, which I believe is important in determining the scope of 301 questions of jurisdiction.

    It made no reference to Lincoln Mills or Steelworkers cases.

    It made no reference to the preamble of the Act.

    It made no reference to the Norris-LaGuardia provisions and the policies involved there, encouraging the peaceful adjustment of disputes.

    It made no record — it made no reference to Title II of the Labor Act which sets up this entire complicated mediation and conciliation machinery, all devised to bring parties together to end labor disputes.

    Indeed, it did not consider the concept of labor disputes.

    It was a very narrow — very narrow approach.

    I would like — for the next few minutes to meet and anticipate some of the arguments which I believe my opponent will raise to this Court.

    When I, as he stated this brief, he takes the position that the stipulation which the parties entered into had a provision in it in which the parties agreed that there was no collective bargaining on an individual store basis and this demonstrates that in fact there was no collective bargaining.

    Of course, it is conveniently overlooked that the last part of the stipulation provides that nothing herein shall exclude the courts from finding that the strike settlement agreement was in fact a collective bargaining agreement as to why the — as to why there was any provision, respecting individual collective bargaining, I think is a matter of speculation.

    The explanation perhaps is this.

    In fact there was no individual bargaining, they bargained on a multiple employer basis.

    The strike settlement was not negotiated with any particular individual employer, but was negotiated with several employers.

    But in any event, I believe it is quite clear that what we have before us is a collective bargaining agreement and I think that the stipulation itself, the very last paragraph there, clearly indicates that nothing in the stipulation was to preclude the courts from finding that this was a collective bargaining agreement.

    In that respect, I refer to page 41 of the transcript where it is specifically set forth saying, “Nothing in this paragraph is to preclude the courts from finding that the settlement of December 24th, 1958 was a collective bargaining agreement.”

    S.g. Lippman:

    Again, I think this whole concept of what is a collective bargaining agreement is not specifically defined and I don’t think it has any particular real meaning in terms of the problem before us.

    The other question which I would like to discuss because I think it was raised in the respondent’s brief is the Bernhard-Altmann problem.

    Respondent believes that what we are seeking here is exclusive bargaining rights because there was appended to the strike settlement agreement, the terms and conditions which were operative in the store and the court in Bernhard-Altmann struck down an exclusive bargaining contract where in fact the union did not represent a majority of the employees.

    I believe that Bernhard-Altmann is in no respect applicable.

    One, I refer back to my previous argument of the basic distinction between enforcement of contracts under 301 and unfair labor practices which is another proposition when the Court enforces contracts.

    It is not adjudicating in any respect, in any matter as an unfair labor practice but enforcing a provision of a contract.

    Of course in the enforcement of the contract, as this Court has pointed out in Lincoln Mills, once the court assumes jurisdiction or search jurisdiction, it questionably will take in to consideration all aspects of federal law.

    But Bernhard-Altmann, if it were to arise at all, would arise only after the court has taken jurisdiction in a situation perhaps where we were seeking to enforce the contract as a whole as an exclusive bargaining agent, and not in any situation where we are seeking as matter of — as matter of an arbitration award to reinstatement of two strikers, and the right of the union representatives to obtain access for the store.

    I believe the Bernhard-Altmann decision makes it clear that device in that case was exclusive bargaining feature and but for that, the contract of course would have been a members only contract or would have been limited and would not create any difficulty.

    John M. Harlan II:

    Are you going to deal with the respondent’s suggestion about this?

    S.g. Lippman:

    Yes sir, I’ll be happy to.

    Respondent has suggested this cause is in the moot.

    It is true, that following the institution of the lawsuit, three local unions who are members of a council, merged with the council into a single local union.

    They merged and took the name of Local 924 I believe is the name of the new local union.

    In fact, the local unions maintain their distinct identity as divisions within local 924.

    They hold separate meetings, they have separate officers, they maintain the same employees, all rights and obligations have been assumed and are carried out, and all obligations are met.

    What was involved was purely an internal maneuver, an internal operation within the unions where instead of having three local unions affiliated with the council, the council was abolished and the three local unions became one, but they maintain their complete identity.

    The membership is there.

    They’re operating as separate divisions and in all respects, they are in a position to carry on, and are carrying on all collective bargaining relationships.

    It is pure — it was purely an internal operation, and in no respect having any kind of an impact so far as outside relations were concerned.

    We point out in brief that this Court had met the same problem in number of — in a number of instances and has overruled any suggestion of mootness.

    At best, you have a successorship where the successor assumed in all respects all the rights and obligations.

    John M. Harlan II:

    Is there an express assumption of that kind?

    S.g. Lippman:

    Yes sir, there is.

    John M. Harlan II:

    Where — where is that?

    S.g. Lippman:

    Well, the record itself isn’t there, but there is in the — but there is in our — in the — in our statement of facts that the suggestion of mootness was not litigated anyway.

    It’s on page 2, if the Court please, of our motion to add or substitute where we say — page 2, paragraph 6 in connection with discussion, we say all contract, rights and obligations of present petitions have been assumed and prosecuted in the name of Local 924 without interruption.

    John M. Harlan II:

    I was wondering what the basis for that statement was (Inaudible)

    S.g. Lippman:

    Well the basis — the basis of course is the affidavit —

    John M. Harlan II:

    As a matter of fact —

    S.g. Lippman:

    — it’s the affidavit of counsel on the matter and this is the only way in which the question arose.

    The question was raised for the first time by respondent in his brief as a statement in which he suggested mootness and the only way we could respond to the thing was by counsel’s own investigation of the facts and determination as to the facts and my word of course as counsel had investigating facts, and there is nothing to contradict it.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    These are — yes sir.

    Yes sir.

    William J. Brennan, Jr.:

    — (Inaudible) the point was made?

    S.g. Lippman:

    No sir.

    No sir, but it was made for the first time here in United States Supreme Court, in the Supreme Court of United States.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    Well, I think we do cite that case.

    Yes sir, it does.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    Yes, you did in the footnote sir.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    — yes sir you did.

    You reached it on two separate occasions I believe and you also reached it in a prior order in the Steelworker case.

    You first issued an order and then again the Court reached it in this decision where are discussed it in a footnote, but you’re correct Justice Brennan.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    Yes you do.

    You are completely correct and I believe so far as Bernhard-Altmann is concerned, I would refer the Court to the Cameron Iron case where then Fifth Circuit where certiorari is denied, where the Court pointed out distinctions between unfair labor practices and the enforcement of contracts, that one does not impinge on the other.

    If there is, we have any unfair labor practices, the Labor Board still sits — still sits.

    There is nothing in a 301 proceeding which in any respect (Inaudible) or divest the Labor Board jurisdiction.

    For long time, the Labor Board has dealt it within his own policy to permit arbitrations, and whether or not, the Labor Board will take jurisdiction where there’s an arbitration award is a matter of its own discretion.

    It makes up his mind whether or not this arbitration award carries out its policies, or whether or not he believes it took — it should take a jurisdiction, but the point I make is, that in the 301 action unfair labor practices are not involved but other considerations.

    I might point out that in any event of course, it’s more than 6 months of taking place and so, there could not be any unfair labor practices brought here.

    I would like to close my main statement with the respondent’s brief.

    Respondent in his main brief seeks (Inaudible) to support the court’s holding, that exclusive bargaining recognition is a condition precedent to the court’s jurisdiction.

    Indeed, he poses the question in that light, but when confronted with the members-only argument, but the members only argument if — if — if — if members-only contracts had been forced, cannot be squared in the Court’s opinion.

    He then retreats and accuses — and accuses us of misreading the Court’s opinion and thereby concedes that members-only contracts are enforceable if they can be found to the collective bargaining contracts.

    I point this out because it — to me, it appears to be abandonment by counsel of the Court’s basic rationale because aside from the rationale, that 301 must be related to other sections of the law requiring exclusive bargaining right for other purposes, the holding that this is not a collective bargaining agreement makes no sense at all because there’s no examination of that proposition because plainly any agreement between a labor union and an employer execute on behalf of one or more — of several employees is within in a broad sense, a collective bargaining agreement is not a — a terminal part, there is nothing to find.

    S.g. Lippman:

    And so, if the court’s opinion, lower court’s opinion is be given any rationale at all, even though I think a highly disputable one, it must rest on the proposition as I think it spelled out and as it pointed out in its findings of fact that union involved was not the exclusive bargaining agency.

    I therefore conclude by pointing out that I believe that the courts — the lower court erred very seriously because I think if allowed to stand, it will create a very serious frustration and impediment to the carrying out of the promise of Lincoln Mills and the Steelworkers cases.

    Earl Warren:

    Mr. Green.

    Merrit W. Green:

    Mr. Chief Justice, members of the Court, if the Court please?

    I believe that the outset I should address myself very briefly to the suggestion that mootness that was raised.

    I would like to say for – as part of an answer to Mr. Justice Brennan’s question about the Insurance Workers case, that that was covered in the footnote in which the Court said that the light of the ruling on the merits, there is no point in determining then and now the legal status of a predecessor or successor union.

    You reached that what was important that came up, you take care of it another time.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    No I can’t recall —

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    — but that was the footnote you said you — you weren’t going to decide that and it wasn’t a pertinent view of your decision on the merits.

    In this particular situation, this did not come to counsel’s intention — attention until we are practically finished with our brief, and it came to our attention only through receipt of reports filed with the Labor Department by respective labor unions under the Labor Reform Act.

    Those reports revealed that three labor unions, as they said in their — as of January 1, 1960, this local merged with Local 128 and 954 and just to count from number 6 to 4 they knew Local 954.

    The only thing I can say to you about this local — this new local, this new union I gather from the contents of those reports that I have filed with the government agency is that, this was not a mere change in identity as some of the old cases of where they changed affiliations.

    The report indicates that after the merge and after the formation of the new union, the members of locals 128 and 633 who are the petitioners here comprised about, if not a little less, but let’s say about one-forth of the total membership of the new union.

    The officers of the new union were not in fact the same officers.

    There are only two officers of the — of the combined 633 and 128 petitioners who became minor officers in the new union.

    I thought that it was incumbent upon me to suggest mootness because of this change in circumstances because if per chance this Court should find that the employers here were parties to a collective bargaining agreement for the purpose of the 301 suit then of course you have to take the other side of the coin and say, “Well, this new union be responsible for all the obligations that 133 — and 128 and 633 might have had during the course of their existence, including damage actions and things of that nature.”

    So I found learning that there was a material difference in the make up and the membership of these unions.

    I thought it was proper and incumbent upon me to bring that to the Court’s attention.

    And one other thing in connection with that, I should bring to the Court’s attention that is in connection with Mr. Lippman’s statement that a function within the organization with a 954 as they use to.

    Well now, we are presently and I think I have pointed out in my brief in Lasalle’s, one of the respondents here, presently has pending before the NLRB, a petition for election by local 954, not the Lasalle’s division of 954 or anything else.

    If that were true, then the — these divisions within the union, I would think under this — this Court’s holding would be labor organizations and they too would have to comply with the Reporting Act and so far as were able to determine, there has been no such reports made by labor organizations or so called divisions, department store divisions.

    The reason of Mr. Lippman’s presentation to this point, I feel it’s incumbent to not only rearrange, but add to with the facts that he gave, in order that the Court might get a better backdrop against which this very important question can be considered.

    These — these two unions and for convenience, I’m just going to call it this union, had for many years as he said, bargained with an organization of multi — multi-employer organiza — organization known as Retail Associates Inc., who — who was the bargaining agent for four downtown Toledo department stores.

    They were never — they were just recognized.

    They were never certified.

    There has never been in an election among the employees.

    In 1957 at the conclusion or an impasse was receipt — was reached in the — in collective bargaining and the union called a strike against retail associates and part of their strategy was to start (Inaudible) picketing.

    They picket only on of the four stores, as I say all over in the downtown area of Toledo.

    Merrit W. Green:

    They picket Tikis.

    Tikis immediately within a day withdrew formerly from Retail Associates and entered into direct negotiations with the union and entered into a contract with the union.

    Three days after that, on November 20, 1957, the strike started on the November 15, three days after Tikis had capitulated, the stores, Retail Associates, filed a petition with the NLRB, asking that the NLRB conduct an election among the employees of the three stores, on a single unit to determine whether or not this union did in fact represent a majority of the employees.

    In 19 — April of 1958, that’s five month later, the NLRB finally ordered an election in a single — on a single unit basis of three stores whereupon the unions filed an action in the District Court here in Washington and was successful in getting an injunction restraining the NLRB from conducting an investigation or an election.

    Now, it’s necessary for me to flash back.

    After the Retail Associates filed the —

    Hugo L. Black:

    (Voice Overlap) what was the ground?

    Merrit W. Green:

    Excuse me sir?

    Hugo L. Black:

    — what was the ground of the —

    Merrit W. Green:

    I’m going to pick that up right now Mr. Justice Black.

    After the Retail Associates filed the request for an election on November 20th, three days thereafter, there’s no strike — there’s no strike activity in the meantime, on November 23, the unions notified each one of the store that they no longer wanted to bargain on the basis of multi-employer bargaining, but wanted to bargain in fact with each store separately.

    So that when — in April, when the NLRB ordered the election on a single unit of the three stores, the basis of the injunction action was that the employees were being deprived of their rights in being forced in the multi-employer bargaining.

    In fact, they said it this way that employers were permitted to withdraw for multi-employer bargaining, Tikis, the union should have the same right, if they no longer wanted to engage in multi-employer party.

    And therefore, they were — the employees were being deprived of their rights to bargain with the rights to have them on the act to bargain separately and they wanted to bargain on a single store basis.

    Well, the local court – the District Court here in Washington granted a temporary injunction and no appeal was taken because immediately thereafter, the three separate stores or the three stores separately in effect disbanded Retail Associates.

    And the three stores each filed a petition asking that the NLRB conduct an election among the employees of the respective stores and a unit among the stores only like the union had wanted — said they wanted to bargain for.

    Felix Frankfurter:

    Just as a matter of curiosity Mr. Green.

    Merrit W. Green:

    Yes sir —

    Felix Frankfurter:

    Isn’t — is the law settle as to whether the Board may in its discretion not only determine what is a proper unit within a single enterprise, but bunched together more than one enterprise for a separate union?

    It isn’t relevant to this case.

    I just —

    Merrit W. Green:

    I think it is.

    Felix Frankfurter:

    — I’m just curious as evidently Justice Black was.

    Merrit W. Green:

    Yes I think it is, in our — in this NLRB proceedings, the NLRB laid down their rules for withdrawal from multi-employer or multi-union bargaining, that you have to do it timely and all that sort of thing.

    Now I think — I think the law settled that they have a right to — that the NLRB has the right to constitute a union of four stores, or five stores, or single classification of sales, people among four or breakdown into various kinds of effect.

    Felix Frankfurter:

    Anyhow, the District Court here granted a temporary injunction —

    Merrit W. Green:

    That’s right.

    Felix Frankfurter:

    — staying that kind of a proceeding note that you stated.

    Merrit W. Green:

    That’s right.

    Felix Frankfurter:

    Alright.

    (Inaudible)

    Felix Frankfurter:

    I’m — I’m sorry —

    (Inaudible)

    Merrit W. Green:

    Yes in the lower courts, we were contending that we have the right on the (Inaudible) case to even black out if we are called upon, but — so you see the November — at the time that the unions notified the stores, if they wanted to bargain individually that was on November 23rd.

    As I say, the — the — at that time, coincident that same time I believe, they then struck the sales alone.

    Such (Inaudible) events, it seems to us then made the Lasalle’s strike which went on for 13 months, a really, a strike for recognition.

    This was a — this was then a demand for individual bargaining and Lasalle’s was just saying and did say all the way through well then we — we will bargain with you and — after our employees have a vote and has determined that you represent people.

    Well, that — those — for those individual petitions were filed in September.

    Immediately therefore and even before with the NLRB start to have hearing, the unions again filed a suit in District Court to enjoin the NLRB from holding hearings because in the meantime, they had deliberately permitted their compliance with the non-communist affidavit to elapse and then they went into court and said, “We know — we haven’t filed a non-communist affidavit and therefore we’re not entitled to use the facilities of the Board and therefore, the Board — even on the employer petition cannot hold a hearing.”

    That’s the way the lower courts here refused to grant that injunction and that refusal to grant the injunction to prevent the hearings, was on appeal on December 24th when this matter concluded.

    At that same, of course, the petitions for election were — on the individual store basis that they wanted were pending.

    Well, as I say this —

    Felix Frankfurter:

    With the — with this union as a — as the designated potential representative?

    Merrit W. Green:

    Yes, they have participated in the NLRB hearings —

    Felix Frankfurter:

    Yes.

    Merrit W. Green:

    — of individual store basis.

    They made demand (Inaudible)

    Merrit W. Green:

    I’m sorry sir.

    They made a demand.

    Merrit W. Green:

    Oh yes, oh yes.

    Oh, yes.

    There’s — they made a demand.

    They said that they wanted —

    Felix Frankfurter:

    But you indicated — but that you indicated — but you indicated their right to become a bargaining agency had lapsed because of the failure to filed (Inaudible) anit communism (Inaudible)

    Merrit W. Green:

    Not the right to be a — the representative of their employees but they claim the right to have the facilities of NLRB.

    Felix Frankfurter:

    Well, that means you conduct to — to be so designated to an election.

    Merrit W. Green:

    That’s right, that’s right.

    Well, as I say in all this time then we have nothing, but more or less at Lasalle’s as they strike for recognition and we’re saying we will recognize you if you’re — if you let us have an election.

    In the meantime, the — I should say this now.

    The Alliance store people, they may have a strength, nobody’s ever allowed to work at the Alliance store.

    Merrit W. Green:

    In the meantime, as department stores work and Lasalle’s is the biggest department store in Toledo in Christmas 19 — during the Christmas season of 1957, after notice required to the people and opportunity to hold their jobs, they were replaced, permanently replaced.

    So, that really the strike in 1958, the big issue then was put our people back to work.

    The (Inaudible) officers of the Toledo Labor-Management-Citizen’s Committee that referred as L-M-C in the — in our briefs, Monsignor Doyle had suggested that the union was willing to wipe out this whole thing by saying that, “Well, we don’t represent these people and we won’t claim to represent them until such time as we are certified by an NLRB election.

    And this whole matter can be settled if you’ll take these people back and reemploy them and reinstate them to their positions.”

    Now, during all of this time, our conversation with L-M-C, the union never participated at any save one which was the night of December 20.

    This is not on the record and I think that Mr. Lippman would permit me the letter to —

    Well, I don’t think I would permit (Voice Overlap)

    Merrit W. Green:

    Alright.

    Then I go back in my statement that during all the time, the union did not participate in this so called “strike settlement,” the L-M-C talk us solely.

    Here’s what took place then.

    We said or we put in the writing and gave to the L-M-C what we characterized and have never said anything different, as our understanding, the statement of our understanding of the conditions upon which the union terminated its strike.

    There has never been any signed piece of paper.

    There has never been as Mr. Lippman insists, no negotiations between the union and us to terminate the strike.

    We handed the L-M-C and said now this, this is a statement of understanding and these are the conditions under which we understand this controversy has — is to be settled.

    Hugo L. Black:

    Is that on the record?

    Merrit W. Green:

    Yes sir and I’ll cover just quickly and I can tell you just what it was.

    Page 9 and 10 of the record, this was appended to the petition.

    I might say to it because narrow issue here of only whether or not there was an enforceable contract in existence between employer and employee.

    Some of the matter that was before Judge Clove in the District Court is not here which was stipulated other instruments and so forth, but now here’s all of the — all — all the statement of understanding is and so we have understanding.

    We just said we’ll reinstate the employees.

    That’s on page number 9.

    That’s number 1 and without any loss of seniority and without any — any discrimination.

    And we’ll reinstate them to their former position classifications if available.

    At this point, I want to correct one of things that Mr. Lippman said and that was that this arbitration was over the reinstatement of two workers, that isn’t the fact, as I will show you in just a minute.

    Third paragraph of the statement is just to saying that we understand that there are going to be good employees and number 4 Lasalle’s said to L-M-C, “We’ll work to UL-M-C that will not reduce any of the pay rates now in effect.

    We won’t do these other things.

    There’d be no recriminations and so forth.

    Now, the wage schedules which are the record between 11 and 34, the wage schedules and the so called personnel policy were given to L-M-C at their request so that if something came up in the mean — later on, they would have an available.

    There isn’t one thing in that wage schedule as the stipulation to which I’m going to refer in a minute shows, none of the wages, none of the working conditions, none of the terms of employment, nothing, nothing in — in the Exhibit A and B which contained in the record were the result of — none of those things were the result of negotiations between these labor unions and the employers.

    Felix Frankfurter:

    To be very specific, these were, what you say so, these were unilateral store policies, is that right?

    Merrit W. Green:

    That’s right.

    These — these were the — the wages — the wages were in existence at that time.

    Felix Frankfurter:

    (Voice Overlap) not initiated entirely emanating from the store?

    Merrit W. Green:

    That’s right.

    As the Court will notice that the effect — these effective dates of this wage — wage rates was a — well, one of them went back to November 1, 1957, the other went back September 8 — September 1 of 1958 and this wasn’t handed to the union until December 24, 1958 or to the L-M-C.

    Well, then in paragraph 5 of the statement of understanding, all we said there that neither the – it’s understood that neither the company of the union will interfere with the rights granted to these people under — under Section 7and 8 of Act.

    That’s just the restatement of their — of their privileges and then we went out to say that now look, nothing that’s contained in this thing as to be construed by anybody that this is recognition of the union as the barging agent for these people, for anybody.

    And the union was our understanding, sat down — see it’s our understanding that the union will not request barging rights.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    Yes, that’s right.

    That was their — their words that L-M-C said to us that, “Now look, if you take these people back, the union will agree that will not request barging rights.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    This is our understanding Justice Brennan.

    As our understanding that the — in our statement at L-M-C, this is our understanding that the union agrees that they’re not going to request barging rights.

    Now and here is one of the key parts of this whole lawsuit.

    Felix Frankfurter:

    I don’t think you —

    Merrit W. Green:

    I’m sorry.

    Felix Frankfurter:

    — have fully answered Justice Brennan’s question.

    Merrit W. Green:

    Well, I’m sorry if didn’t but —

    Felix Frankfurter:

    The union agrees, is that — is that on its part a unilateral statement or is that an undertaking again and if so, to whom was the undertaking (Voice Overlap)?

    Merrit W. Green:

    It was a — an ex — or as a unilateral statement on our part saying to L-M-C that is our — this is our — and you represented — you represented to us that the union will agree that they will not request barging rights until they’re certified — unless and until they’re certified.

    Felix Frankfurter:

    Did anybody sue on that agreement either the covenantee or third party beneficiary?

    Merrit W. Green:

    I think so, under the Ohio law.

    I think under the Ohio law, they could have sued not only under — I think they can sue in the declare — declaratory judgment acts.

    Felix Frankfurter:

    You mean the stores could have sued.

    Merrit W. Green:

    No.

    Well, yeah — of the individual employees or the union could have — oh, I see, you mean — you means as to bargaining rights?

    Felix Frankfurter:

    Yes.

    Merrit W. Green:

    No, I don’t think everybody can sue.

    Felix Frankfurter:

    This is just a declaration of policy by the union you say.

    Merrit W. Green:

    That’s right.

    I don’t think anymore than — than that.

    They have — they would have that — we will still have the right to say, “Well if you claim you represent the people, they will file — will file a petition and get election you see.

    Felix Frankfurter:

    No, no, no.

    But I mean that mean as a — as a — on the basis of the union agrees, you say no — no simple damages or no injunction to specific performance or negative injunction to enjoin disobedience would lie.

    Merrit W. Green:

    I don’t think that would be the key clause in whether or not they could.

    I think may — that may come a little later.

    Felix Frankfurter:

    Alright then.

    Hugo L. Black:

    I do not quite understand, (Inaudible) the position you’re taking on.

    This seems to be a statement made to a mediator between you and the union and on certain conditions, you would be certified and on certain conditions, the union would be certified.

    The commentator in accordance to the letter of transmissive, they did December (Voice Overlap)

    Merrit W. Green:

    December 24.

    I think that’s a–

    Hugo L. Black:

    Why is that — why is that any different to the facts?

    The situations that would have existed had not been though intermediate and you’ve said that directed to union.

    I don’t quite understand.

    Merrit W. Green:

    Well —

    Hugo L. Black:

    It seems to be a bargaining undertaking on the part of (Inaudible), certain things would be done.

    Merrit W. Green:

    Yes, I think to its legal effect, because that’s the question of the lawsuit whether or not there — where there was any — any right of the union as the union to bring an action to enforce a so called award.

    As I said at the — near the outset, this statement of understanding that we gave to them was — to the L-M-C, was our understanding of the conditions, out forth either by the union or ourselves as to basis on which the strike of the union was terminated.

    Hugo L. Black:

    But you would agree to certain things —

    Merrit W. Green:

    I think that’s true.

    In other words we’ve said to them that we’ll do these things.

    Hugo L. Black:

    Why wouldn’t you be as much bound and why wouldn’t they be as much bound as though there had been no intermediary.

    Merrit W. Green:

    I think that’s true within the proper — in the proper type of action.

    We would be bound on the certain circumstances for certain things and I think the union would be bound.

    Now whether or not the union — whether or not this is a 30 — Section 301 case, I mean a contract which is enforceable under Section 301 which is a limited jurisdiction section as I understand it.

    Hugo L. Black:

    If it is not, why is it not?

    I do — I cannot believe you’re arguing in its counter effect that you didn’t have agreement with them though this is plainly an argument, (Voice Overlap) verdict.

    Merrit W. Green:

    Yes, this part is — this the agreement.

    Merrit W. Green:

    Well, we say it Mr. Justice Black that’s our position that we were not — there was not an existence a contract between an employer engaging in the interstate commerce.

    Hugo L. Black:

    Well, were you engaged in it?

    Merrit W. Green:

    Yes, that’s right and union representing employees as this contemplated by Section 301 which permits an action to be filed for a breach of contract without meeting the necessary jurisdictional requirements of a — of a

    Hugo L. Black:

    But then you do say that it’s contrary that is bound each of you to do so that there could be somewhere an action both to be — to be enforceable that you say it can’t be done under 301, why?

    Merrit W. Green:

    Well, we say that actually that — that 301 contemplates a collective bargaining contract or a contract derived that as a result of collective bargaining between —

    Hugo L. Black:

    What has been derived?

    What was the basis of this?

    You had a misunderstanding about the strike, didn’t you?

    Merrit W. Green:

    The strike–

    Hugo L. Black:

    (Inaudible)

    Merrit W. Green:

    Sir, the strike was not as I — as we’ve view it the November 23 strike against Lasalle’s only was not as the basis — it was not an economic strike, let me put it that way.

    Hugo L. Black:

    But all this was — it was involved in the labor dispute, isn’t it?

    Merrit W. Green:

    It involved in the labor dispute, I think it was a —

    Hugo L. Black:

    Each of you made an undisputed and negotiated through these people, each of you reached to conclusion and each of you made an agreement.

    Then why could it not be enforced under 301?

    Why should it be any more bar than any other agreement?

    Merrit W. Green:

    Well, I don’t believe I can answer you at this time and I think I have — I have the answer in brief, over and beyond saying that we do not believe in this respect, of course we hardly agree with the District Court that this contract if you will, to use the phrase that you used and I’m not saying it’s not.

    Well, it’s not the type —

    Hugo L. Black:

    (Voice Overlap), is that it?

    Merrit W. Green:

    Sir?

    Hugo L. Black:

    Couldn’t well be said it’s not conflict, could it?

    Merrit W. Green:

    It may unlike —

    Hugo L. Black:

    It doesn’t bound, you said, to do something or consideration to the other doing something.

    That was a contract, wasn’t it?

    Merrit W. Green:

    There maybe an understanding agreement between us to do something to whether be legally binding contracts such as you’re going to have —

    Hugo L. Black:

    But before it (Inaudible) the one thing or another — why was this in void, why isn’t not enforceable as any others?

    Merrit W. Green:

    We don’t say it’s in void.

    We say that to the extent of which — of what is this contained therein, it’s alright.

    We’re saying but it does not meet the requirements of a contract within the contemplation of Section 301 of the Act.

    That’s —

    Hugo L. Black:

    Which provision of Section 301 does it fail to meet?

    Merrit W. Green:

    301 (a).

    Hugo L. Black:

    What —

    Merrit W. Green:

    We — we say that that this is not — no, what we’re saying that 301 (a) contemplates a contract arrived at by reason of collective bargaining as defined in the Act.

    Hugo L. Black:

    And you say this was not collective bargaining?

    Merrit W. Green:

    That’s right.

    Hugo L. Black:

    Why?

    Merrit W. Green:

    We have never — we never met with the union —

    Hugo L. Black:

    Suppose you didn’t — you met with — you met with them (Inaudible).

    You had a man between you, you say that at the agreement bargain to negotiate, he gave his terms, you gave yours and then each of you reached to conclusion through him on a contract that’s binding but not under 301 you say?

    Merrit W. Green:

    That’s right Mr. Justice Black I’ll tell you, only — may I just add one more thing to that.

    It is stipulated in the record, and this is the area upon which enforcement of the so called “arbitration award” is requested, but it’s stipulated in the record that none of the wages or personnel policies or anything else were the result of negotiation between the stores and the union or the L-M-C on behalf of the union.

    The L-M-C had nothing to do with — with wage rates or anything of that nature.

    Now, may I proceed?

    I don’t — I believe Mr. Justice Black, I can’t answer you —

    Hugo L. Black:

    I frankly cannot see why this is not — what I would know, with my limited understanding of it a negotiation between companies and the union through somebody else, that has just different views, if I’m going to reach different agreement, the union would agree to do this, about this employer, the other people agree to do this, and I can’t understand why that would not be enforceable —

    Merrit W. Green:

    Enforceable.

    Hugo L. Black:

    — under 301 as any other would?

    Merrit W. Green:

    Well —

    Hugo L. Black:

    I don’t even get the ground on (Voice Overlap)

    Merrit W. Green:

    Well, here — I think here is the — maybe — maybe this might help explain my position that maybe —

    Hugo L. Black:

    It’s not my fault but I don’t understand, but I just don’t.

    Merrit W. Green:

    You see, we say that 301 require — permits a filing of a lawsuit for breach contract entered into between the employer and the labor union representing the employees as which was result a collective bargaining.

    Now, collective bargaining and this I think, if I can read just a few lines here, might distinguish between the so called agreement — what agreement we’re talking about here and the one that’s contemplated for enforcement under 301.

    Section 8 (d) or some — I think it’s 8 (d) of the Act defines collective bargaining in this way, to bargain collectively as a performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confirm good faith with respect to wages, hours and other terms and conditions of employment for the negotiation of an agreement or any question arising there under and the execution of a written contract incorporating any agreement reached if requested by either party, such obligation does not compel someone to agree to proposal while making a concession, meaning of course, you still have your right to strike and so forth.

    So that —

    Hugo L. Black:

    Where is the —

    Merrit W. Green:

    I think we are saying that our statement of understanding does not fall within this definition of what collective bargaining is.

    Hugo L. Black:

    Why?

    Merrit W. Green:

    Well, there’s no obligation for us to meet a periodic time for renegotiating or — or to change the contract.

    Merrit W. Green:

    There’s nothing —

    Hugo L. Black:

    (Inaudible) the labor contract of that kind would be good?

    Merrit W. Green:

    I don’t believe so.

    I don’t believe a labor contract could be one that didn’t have a termination period or requirement that you meet at frequent times or that you have a mutual obligation to contract.

    I don’t believe a labor contract that did not have a termination date at least the under board law, they have said that any contract beyond, I believe it’s three years would not be a contract bar if someone came in and want —

    Hugo L. Black:

    Well, this shows that it was take place for a time and you mean it would be void because it didn’t say exactly or wouldn’t be —

    Merrit W. Green:

    No, I — I don’t — I don’t mean to say that.

    I mean, to say only that, that is one indicia that it’s not a collective bargaining agreement as contemplated by the Labor Act in Section 301.

    Hugo L. Black:

    You’re not facing anything, are you on the fact that it was done through somebody else?

    Merrit W. Green:

    Well, no, that’s right.

    I’m — I’m saying — I’m going back to the stipulation of neither the labor union or L-M-C for the labor union engaged in any collective bargaining as defined in Act that I just read there.

    Felix Frankfurter:

    May I — may I ask you to forget all about 301?

    Merrit W. Green:

    Yes Sir.

    Felix Frankfurter:

    — for a moment, just forget about it.

    It doesn’t exist.

    Pre 301, if I may draw on personal experiences, in more than one situation like this, I was in the position of [in Monsignor Doyle, a mediator between two parties neither in which the employers would under no circumstances, sit down and bargain with the union.

    Now, there are two kinds of mediation in such a situation and I’ve been through both of those.

    In one in which terms of agreement are made between the employer and the union through the conduit of the mediator, but they have been great hostility, they don’t want us to go down the same rule.

    In the other, and these were cases during the war, no this last war but the first World War and the other where neither would talk to the other, would have anything to do, which was conscious of public responsibility and each side made concession to the representative of the Government not by way of any agreement with the union remotely.

    That’s just what they would resist to the death but they would make concessions to the government mediator.

    Now, those are two very different situations for the intervention of the mediator and I want to know which this was, forgetting all about 301.

    Merrit W. Green:

    Here’s, I think the latter situation you described was this one.

    Hugo L. Black:

    But suppose your — suppose the president of your company had (Inaudible) to the president of the union and they were afraid to meet, face, whatever to shoot the other, but they did want to see if they can get together, to name somebody else to act in between them and they made an agreement like this.

    Would you say that is a binding agreement?

    Merrit W. Green:

    Well, if — because of those periods or anything may I as Mr. Justice Black, I think that the thing that you are describing is almost the number one situation of Mr. Justice Frankfurter.

    Now, if those two people or the person that the president of the company and the head of the union designated to do this, if he was authorized to and in fact did arrive at disputes on wage rates, on overtime, on vacation and so forth, there isn’t any question that — that the result of his mediation, if agreed too, would be a collective bargaining contract.

    Hugo L. Black:

    Well didn’t they do that here?

    Merrit W. Green:

    Oh, no, oh no.

    Hugo L. Black:

    Well, they didn’t agree to some of the things that a collective bargaining agreement might include.

    Merrit W. Green:

    The only thing they agreed is what is in this first — this paragraph right here.

    Hugo L. Black:

    Now, that sounds to me like one of your items as (Inaudible) that was permitted to writing and both sides agreed to the ride into which it was committed.

    Merrit W. Green:

    I don’t believe Mr. Justice Black as I interpret the statement of understanding that there is anything really in there, in the statement of understanding with the possible exception of item number 7 which the key of this whole lawsuit.

    Hugo L. Black:

    That says we talked about agreement?

    Merrit W. Green:

    That’s right.

    Hugo L. Black:

    And you agree how you’ll settle it.

    Merrit W. Green:

    That’s the only thing that’s common to us — really a collective bargaining agreement.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    Yes sir.

    We actually — we want it — yes that’s right.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    Oh at that time if they were — they were — they would have withdraw, that’s right.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    That’s right.

    William J. Brennan, Jr.:

    And as the union strikes the man (Inaudible).

    Merrit W. Green:

    That’s right.

    William J. Brennan, Jr.:

    (Inaudible) in litigation (Inaudible) to this Court and (Inaudible) litigation involved in–

    Merrit W. Green:

    That’s right.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    Well, you know the question of governing of unfair labor practices and —

    William J. Brennan, Jr.:

    But they would have?

    Merrit W. Green:

    Yes, I think they would have, but I think they would avoid it.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    A sense of —

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    No.

    I think what you’re talking about, are you not, Mr. Justice Brennan in the rights within the state courts rather than —

    William J. Brennan, Jr.:

    No, what I am trying to get to is whether or not there is an agreement between the union and of the company impliedly in this statement of understanding.

    Merrit W. Green:

    There is an agreement to do — they would draw the picket line, we’d take the people back, all these things are here but we say that —

    Felix Frankfurter:

    That’s impossible on the Ohio law, forget about 301.

    Is there any — is that enforceable, would that enforceable?

    Merrit W. Green:

    Yes.

    I think it would be.

    Felix Frankfurter:

    Well then — it could be only be impossible if you make a voluntary — if you stand on the — in the most prominent place in Toledo City, I don’t know, I’ve never been there and make a — and make a pronouncement of what you do, that wouldn’t be enforceable in the court of law, would it?

    Merrit W. Green:

    No.

    Felix Frankfurter:

    Citizens might think ill of you etcetera, etcetera, etcetera, etcetera and pressure might be brought to bear on you etcetera, etcetera.

    Merrit W. Green:

    That’s right.

    Felix Frankfurter:

    But nobody can go and sue on that.

    Merrit W. Green:

    That’ right.

    Felix Frankfurter:

    The Union says, we’ll do so on and so, all on its own.

    Nobody could go into a Court in Ohio, and just force it.

    Merrit W. Green:

    That’s right.

    Felix Frankfurter:

    How was that — this situation was, your situation, that kind of a thing or was it a conjoined sub-consensus of agreement between two people forgetting about 301 in which there would be a suit; a potential suit in Ohio Court.

    Merrit W. Green:

    No I don’t believe that was ever within contemplation of the parties (Inaudible)

    Felix Frankfurter:

    Alright.

    For me it’s decisive, that question is decisive.

    Hugo L. Black:

    You say that if obtained, none of the thing that collective bargaining agreement, since I’ve ever have heard about collective bargaining agreement, the provisions of Section 4 put it on. You wanted it but the Governor will not reduce rates (Voice Overlap)

    Merrit W. Green:

    That’s right.

    Hugo L. Black:

    That you will preserve jobs security, that you’re preserve the recreational facilities and so forth.

    Merrit W. Green:

    That’s right.

    Hugo L. Black:

    Well in that — the communist thing if you have in the labor agreements?

    Merrit W. Green:

    Yes.

    I think those are the things —

    Hugo L. Black:

    But what you want — what was the purpose in warranting your client?

    Merrit W. Green:

    So that we —

    Hugo L. Black:

    Who are you warranting it, to the public?

    Merrit W. Green:

    We were saying that the — to L-M-C that we could assure you that we are not going to — these people come back to work, we’re not going to —

    Hugo L. Black:

    And — and were you telling them not to go and get the other people that we need to do certain thing or shouldn’t that the other?

    Merrit W. Green:

    Well, I don’t know who is making the first offer to do what.

    Hugo L. Black:

    Just saying who is making the offer. That was on purpose wasn’t it?

    Merrit W. Green:

    I think that that was —

    Hugo L. Black:

    Distributed to them, through them and they will send it back to you and this is the agreement you reached.

    Merrit W. Green:

    That’s right.

    Hugo L. Black:

    That you’d give them job security and you wouldn’t reduce their pay.

    Merrit W. Green:

    There isn’t any question about that.

    Hugo L. Black:

    And you say they can’t enforce that for breach of contract?

    Merrit W. Green:

    Well, I don’t say — well again, we get back to what we were talking about before is to what that — the narrow issue here is of course is whether or not this is that type of contract under the 301.

    These other things, well they can enforce it or not, those are some secondary issues that are down the road.

    For — for instance, you would have Communist Union where they’re proper plaintiffs and I think that’s what Judge Paul was talking about that the question that Justice Stewart raised.

    In other words, we’re talking about agreement.

    Hugo L. Black:

    (Voice Overlap) opinion, I can’t tell exactly what he was (Voice Overlap)

    Merrit W. Green:

    Well, that’s in the record you see but the — in the — the key to this thing for instance, as I say, this is down the road.

    The so called grievance procedure says, “Any individual employee who may have a grievance may do certain things.”

    I mean if he can’t solve the grievance then he can go to — to L-M-C.

    There’s no place in here does it say that the labor unions may agree as such, nor is there anything —

    Hugo L. Black:

    Do you consider that (Inaudible) on this because you didn’t sign the name to it?

    Merrit W. Green:

    Well, no, no, no, I don’t think that —

    Hugo L. Black:

    Do you consider that they are?

    Merrit W. Green:

    No, I don’t think that whether it was signed or not with a — even if we were to sign it, I don’t think that we’ve been more liable, signs this agreement, I don’t think that’s it.

    You see — you did have these two things here, the labor union brings us action for its own benefit.

    I don’t think they’re a recipient under 7, under Section 7 because the only person who had the right to agree under the agreement, if you want to call it that, was the individual employee.

    Hugo L. Black:

    Wasn’t it in effect?

    Merrit W. Green:

    Well, that was a — that was an understanding between the people.

    That was the agreement and let’s — let’s say it’s the agreement.

    Hugo L. Black:

    Well that — it either was or wasn’t in your judgment, was it an agreement or not?

    Merrit W. Green:

    We don’t — we think it was an agreement to do certain things, but was not an agreement which met the requirements of Section 301 (a) to enable a labor union which was not a party to it as such to bring an action in the Federal District Court.

    Hugo L. Black:

    Suppose it signed — supposed signed it, would that (Voice Overlap)

    Merrit W. Green:

    I don’t think that made a difference (Voice Overlap)

    Hugo L. Black:

    (Inaudible)

    Merrit W. Green:

    No I don’t that think it made a difference.

    Hugo L. Black:

    It would’ve been no less — it would’ve been no less liable and no more liable, (Inaudible) to sign.

    Merrit W. Green:

    I think that’s true.

    You see — yes Mr. Justice Brennan.

    William J. Brennan, Jr.:

    Whether (Inaudible)

    Merrit W. Green:

    Well, if we had the whole — their whole feeling, I suppose that would be —

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    What they have done there —

    William J. Brennan, Jr.:

    (Inaudible) the agreement (Inaudible) certain arrived as a (Inaudible) all parts.

    Merrit W. Green:

    Well, there isn’t any quite — we don’t — we don’t repudiate that we entered into what set forth in their statement of understanding.

    William J. Brennan, Jr.:

    (Inaudible) —

    Merrit W. Green:

    Well —

    William J. Brennan, Jr.:

    — mediating something that (Inaudible) not with agreement with the union.

    Merrit W. Green:

    May we test that by something right out of that very same letter?

    In the 3rd paragraph, this is — we’re talking about 3rd — page 35.

    This is also what they said.

    That agreement specifically states that nothing in the agreement will preclude an employee represented from entering the store to communicate with employees on the latter’s own time providing it does not interfere with the store operations.

    Now, what does the agreement provide on page 10.

    Here, it says and notes the difference, “Nothing herein shall preclude an employee representative from entering areas of the store which are open to the public.”

    William J. Brennan, Jr.:

    Well, that (Inaudible)

    Merrit W. Green:

    Or from communicating so forth.

    William J. Brennan, Jr.:

    (Inaudible) immediate rights (Inaudible) disagreement, an agreement just justified there is a letter (Inaudible)

    Merrit W. Green:

    That’s right now, that was their intent to do that.

    It’s our view that in this particular case and this was — this would be a question that would come up later on if we have to go back is, did this award come within Section 7; the so-called “arbitration section.”

    William J. Brennan, Jr.:

    Well, we’re not there.

    Merrit W. Green:

    I know we’re not there you see — you see — and that would be a very question.

    Number one, would — would they be proper plaintiffs to bring the action, and was this award within the — the Steelworker’s cases; the three Steelworker’s cases.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    What — that was right.

    The — the Steelworker’s cases won’t be cited in this case.

    John M. Harlan II:

    Assuming — assuming that instead of have — excuse me?

    Earl Warren:

    No, go ahead.

    John M. Harlan II:

    Assuming that instead of having the mediation board in this picture the employer’s lawyer gone over and have a talk with the lawyer, our union representative to talk, with the lawyer for the union, and then these — these documents have come to light as result of those lawyers’ discussions, what would have been your position?

    Merrit W. Green:

    You’ll forgive me but I really don’t understand your question —

    John M. Harlan II:

    Say — instead of what happened, I assume that these papers had resulted from a lawyer of the employers going over and talk to the lawyers for the union and then as a result of those lawyers’ conversations, there was an exchange again between the lawyers of these papers, what would have been your position?

    Merrit W. Green:

    I don’t think it would have been any difference than it is now.

    I think that — the lawyers have just been putting down their understanding of the conditions under — once the strike was terminated and that would not result in the conversations between the lawyers where they did not enter in there any negotiation as to wages, hours, working conditions, terms of employment and so forth.

    I don’t think — which I can’t — which I think is a collective bargaining agreement, contemplating the 301.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    I have two, I mean —

    William J. Brennan, Jr.:

    (Inaudible)

    Hugo L. Black:

    The lawyers — well, the lawyers were part of the agreement in that.

    William J. Brennan, Jr.:

    (Inaudible)

    Earl Warren:

    Well Mr. Green, let me ask you — let me ask you this question on page 40 of the transcript — in page 39 and 40.

    We have the stipulation that you yourself entered into in this — in this case in which you say in the last paragraph on page 40 that it’s further stipulated that — that the wages, hours, and other term and conditions of employment were not bargained for but they were — they were in existence at the time of the — at the time of the agreement, and that there is nothing new in it except item 40 which has to do with — with insurance and — and other welfare provisions for — for the employees.

    They appear on page 28.

    But at the end of that paragraph, you say nothing in this paragraph is to preclude the court from finding that the settlement of December 24, 1958 was a collective bargaining agreement and that’s the — that’s the contract that we’re talking about.

    Merrit W. Green:

    That’s right Mr. Chief Justice and I’ll tell you why it was put in there.

    We weren’t going to stipulate — the unions weren’t going to stipulate itself out of Court and we weren’t going to stipulate then in the Court.

    We were going to say that these were all the facts and we’re not — none of these things were negotiated, but this — if the court thinks that there was a collective bargaining agreement, because that was the very knob of the jurisdictional question, then of course we’re not —

    Earl Warren:

    You’re stipulating yourself out of court and when you say that nothing in this paragraph is to preclude the court from finding that it is a collective bargaining agreement.

    If you agree to that way, you’ve — you’ve lost your lawsuit, haven’t you?

    Merrit W. Green:

    I don’t believe so Mr. Chief Justice because the Court then, only we’re saying then that under all these facts then the Court first has to determine whether or not there was a collective bargaining agreement, because that was the very issue in the lawsuit.

    Earl Warren:

    You mean you’re saying that nothing in this paragraph is to preclude the court from following the law, is that what you say you mean?

    Merrit W. Green:

    Well, I have of fact, yes.

    Earl Warren:

    That’s only all you meant.

    Merrit W. Green:

    That’s right.

    Well, we weren’t saying that — that — by that we weren’t saying that there was a — or was not a collective bargaining agreement.

    We were just saying that if we tried this lawsuit, these facts, we’ll stipulate that these facts would — would be developed.

    William J. Brennan, Jr.:

    (Inaudible) collective bargaining (Inaudible)

    Merrit W. Green:

    Well it just says that that the stipulation of the facts doesn’t preclude the Court from finding it was.

    I think maybe the negative, the — the other way, we started out saying that the one —

    William J. Brennan, Jr.:

    (Inaudible) was there an agreement?

    Merrit W. Green:

    That’s my whole lawsuit.

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    Yes.

    Well, I think that’s — that’s the — that’s the thing that the court found and I base that primarily on the bargaining or I mean on the legislative history of this whole thing.

    After all, employers prior to the enactment of 301 as I understood, were suitable for breaches of — the claim breaches of contracts by unions, or as there was some difficulty if not impossible to sue unions.

    And the — as I read the — about the history — legislative history, the main purpose of this enactment was to make unions responsible for breaches of contract and then in the — it seems as though that when they get down to the enactment of the section, the House — the Senate or the House agreement changed the — changed the sections to include also breaches of contract between labor unions.

    And therefore, they had to change their original Senate language from contracts as a result of collective bargaining to make it apply to both types of contracts; to contracts between employers and employees, represent these employees and labor unions.

    Now —

    William J. Brennan, Jr.:

    (Inaudible), cannot be definition after the (Inaudible) collective bargaining unless than this even between employers and the union (Inaudible)

    Merrit W. Green:

    Well, in view of this Court’s case in the Ladies’ Garment Workers in 1961 where they struck down a contract which the union tried to keep in existence as a members only contract where this Court said that even though the employer and the union mistakenly entered in — good faith, entered into a contract as — as though they were the majority representative that therefore, they violated the Act and the members only aspect of it could not be maintained.

    Now, I think it —

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    Yes, that was a — that’s right, where the NLRB made them — have an election even though in the mean time, they’d become the majority representative.

    Now, of course, you got to remember here that the effect of your decision to say that this was a some type of an action that this Court had jurisdiction over this type of an agreement would be, in view of the fact that this does not — this is not restricted to members only; the members of these unions.

    It would involve the employees of three stores but the effect would be — that by decree of the Court, you would be bringing in to an existence a labor contract in which these unions had the right to represent all of the employees even though they have admitted that they were not — the representative of the majority.

    You see, that’s really what’s in the knob, what will happen?

    William J. Brennan, Jr.:

    Well, what would be your answer is yes, but the only (Inaudible) under 301 is the agreement that an employer in a labor organization in fact representing an (Inaudible) interrogating an employee, therefore it’s under recognition of the suit.

    Merrit W. Green:

    It may be possible as Justice Douglas pointed out on his dissent under the Ladies Garment Workers for an employer and employee to enter into a members only contract so long as it doesn’t extend privileges to that union to do things that — that only majority representatives to do.

    Now, in this case of course, this action was not brought out on the base of this members only contract or that they were bringing the action only for them, that was nothing the pleadings on that you see.

    In view of the —

    William J. Brennan, Jr.:

    (Inaudible)

    Merrit W. Green:

    That’s right.

    William J. Brennan, Jr.:

    (Inaudible) organizations and employer, Section 301 (Inaudible)

    Merrit W. Green:

    That’s right, but what I’m saying is that if the Court held that they did have the — this right, it would extend to the employees of all three of these stores because it’s the — the so called statement of understanding does not limit it to only their members, you see.

    And what you would be doing is by court decree bringing in to existence a collective bargaining contract where this union would have a right to — to negotiate or arbitrate, to do all these things on behalf of these — these people and bring suits under 301 and we don’t believe that is really what — was within the contemplation of the labor policy.

    Felix Frankfurter:

    Mr. Green, before you sit down, I’d like to ask you this question.

    Before I reverse the judge; I’d like to know what he’s decided.

    I thought that Judge Kloeb had ruled and that’s the opinion on — in fact that’s the opinion of Court of Appeals of course, by adoption if it were.

    I thought he had ruled that the 301, this is not — does not come within enforcement under 301 because 301 has a specialized conception of what is a collective bargaining contract.

    Felix Frankfurter:

    And I have read very carefully, I think I can say very carefully; reread and Judge Kloeb’s opinion and I am less in doubt whether that’s what he’s decided at least there are (Inaudible) through findings that he decided that 301 requires (Inaudible) of a particular kind of a contract.

    Can I call your attention to three items which — out of which — which to deal them together all into one, of the mere cloud as to what he’s really decided.

    On page 46 in the 2nd open paragraph, is that —

    Merrit W. Green:

    46 did you say Your Honor?

    Felix Frankfurter:

    346 of the record.

    He displayed his position, etcetera that in these statements, these statements of plaintiffs constitute a contract, at least a contract for the benefit of plaintiffs, and that it is there for such a contract as it’s contemplated by Section 301.”

    Constituted contract, now that’s, at least, the contract for the benefit of plaintiffs.

    The implication is that might have been a contract between him and Monsignor Doyle’s Committee.

    As I turn to page 47, next to the last paragraph, the last sentence, the agreement that we are here considering is a strike settlement agreement which we cannot construe as having been entered into for the benefit of plaintiffs and that looks to me like —

    Merrit W. Green:

    (Voice Overlap)

    Felix Frankfurter:

    The so called the 2nd kind of thing that I was talking about.

    Merrit W. Green:

    I believe that — that’s right.

    Felix Frankfurter:

    That made strike settlements which were certainly not agreements between employers and employees.

    Merrit W. Green:

    That’s right.

    (Inaudible)

    Merrit W. Green:

    And then on page —

    Felix Frankfurter:

    (Inaudible) that 2 and 2 make 4.

    Now thirdly, next to the last full paragraph on page 48, that none of the factors and so on which gives substance rights of the unions to bring actions on the Section of 301 are present in this case and particularly a contract between plaintiffs and defendants.

    But I can’t imagine anybody would contend it if there’s no contract between employers and employees, you have a suit, the basis for suit under 301.

    I don’t suppose anybody would contend that, at least I don’t tend they suggested yet, that is the (Inaudible) case, but is it particularly the contract of being plaintiff and defendant so that those three items together make me — leave me in doubt as to what it is that Judge Kloeb really has decided.

    Has he decided there was no contract on the — on the claims in this case including the stipulation or has he decided all though there was a contract, it was not the kind of contract that 301 looks to?

    Merrit W. Green:

    I think —

    Felix Frankfurter:

    And I’d like to have you comment on that just I hope Mr. Lippman would say something about it.

    That doesn’t settle the controversy but it does settle — I should like to know what it is Kloeb went, judge Kloeb went on?

    Merrit W. Green:

    And I think though your latter statement was (Inaudible) doesn’t the — does the statement of the findings of fact on page 49, clear up and put down on a nutshell what he’s talking about.

    Felix Frankfurter:

    Where is this?

    Merrit W. Green:

    He says — in number 3 that the statements of understanding are not collective bargaining contracts negotiated by or on behalf o the plaintiffs with either of the defendants.

    Then in number 4, he says, “There as no existing collective bargaining contract between the plaintiffs and either of the defendants.”

    Isn’t he saying there therefore that first, you have to have a contract breached between — in between an employer and employee which is breached to bring a suit under 301.

    And I think —

    Felix Frankfurter:

    Are you saying — but he said that forget all about 301, that there’s no enforceable right under — under contract law of the State of Ohio.

    Merrit W. Green:

    I don’t think he’s saying that.

    Oh no, I think I think —

    Felix Frankfurter:

    And what if there is then I don’t — then you start me all over again.

    Merrit W. Green:

    No I think —

    Felix Frankfurter:

    If there is a contract either between A and B or between A and X where the 3rd party is the beneficiary, then you’ve got other on that one situation.

    If you say there is no such consensual agreement, either directly between the parties or for one of the parties enforceable by a third party, you’ve got another situation.

    Merrit W. Green:

    Well, I think that’s true.

    No, I don’t believe that — I think if they could meet the jurisdictional requirements.

    Felix Frankfurter:

    The jurisdictional requirement derives from an answer to that question.

    Jurisdiction follows the gist of a contract.

    If you got no contract, of course you have — you haven’t gotten the basis for 301.

    Merrit W. Green:

    Well, Mr. Justice —

    Felix Frankfurter:

    If you’ve got a contract then you may have the correction which Justice Brennan’s invited your attention toward the end, namely the assumption that although you have a contract between employer and employee or a contract by employer for the benefit of the employee, you haven’t got a 301 kind of a contract.

    Merrit W. Green:

    Yes, well you see, you can have contracts that would be enforceable in — in the higher Courts that would not be 301 contracts.

    Hugo L. Black:

    As I’ve understood you, you’ve been saying ever since you got up if they did have a contract, they wouldn’t want — one you could sue on under 301.

    Merrit W. Green:

    Well I (Voice Overlap) if I did, I didn’t mean to say — I’ve meant to say they just — that this was a — is understanding given to the L-M-C of the conditions circumstance under which the strike was terminated.

    Now, let’s say it’s this contract.

    It’s an agreement between these two people.

    Hugo L. Black:

    And possible in Ohio law, as I understood you (Voice Overlap)

    Merrit W. Green:

    And they could bring —

    Hugo L. Black:

    I don’t understand (Voice Overlap)

    Merrit W. Green:

    They could bring — no, and let me put it this way.

    The Ohio courts would have jurisdiction or that’d be jurisdiction within Ohio courts to bring the action, what the result would be.

    Now, that’s another thing.

    Hugo L. Black:

    Are you not denying it is a contract between these people?

    Felix Frankfurter:

    Who are these people though, that’s the fact.

    Merrit W. Green:

    Yes, that’s right.

    Hugo L. Black:

    Are you not denying if there’s a contract between the employer and between the employees?

    Merrit W. Green:

    Yes.

    Hugo L. Black:

    You are now denying there is a contract —

    Merrit W. Green:

    A collective bargain contract.

    Hugo L. Black:

    Well, are you denying there’s a contract? I understand you said it’s not a collective bargaining.

    But that you’re denying of the contract.

    What are these things signed by some of them here in the record?

    Why were they signed by the union except to — as a part of an agreement between them?

    Merrit W. Green:

    Well, that — for our purpose here today, let’s say that the — the employees have rights enforceable in Court under the terms of this statement of understanding.

    Earl Warren:

    Because it was a contract.

    Merrit W. Green:

    Because of the contents of this —

    Hugo L. Black:

    What is meant by this, signed by line — in order that make it operative, the lines stores commitment set forth and so forth transmitted, we agree that the success of the undertaking, instability depend upon the good faith and so forth, and they signed it as themselves to make operative this agreement which you’ve been talking about.

    Merrit W. Green:

    That’s right.

    Hugo L. Black:

    And so did the other stores did and so did the union.

    Merrit W. Green:

    That’s right.

    Hugo L. Black:

    They all signed it as — as representing that agreement and (Inaudible) on the terms employed in that statement that was written out by the (Inaudible), it’s understandable?

    Merrit W. Green:

    Well, yes.

    Hugo L. Black:

    You participated in (Voice Overlap).

    Merrit W. Green:

    That’s right.

    No I’m not saying —

    Hugo L. Black:

    (Voice Overlap) union participated in that.

    Merrit W. Green:

    I’m not saying Mr. Justice Black that the employees do not have rights that bring an action on the basis of what they’re entitled to one of that agreement.

    I think they would have a right, but they wouldn’t have a right under 301 because that’s only between employer and employee.

    Hugo L. Black:

    But I understood it as (Inaudible)

    Merrit W. Green:

    Yes, I think they’d have that right, (Inaudible) question.

    Earl Warren:

    Mr. Lippman?

    S.g. Lippman:

    Yes sir, thank you sir.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    I think the record shows that on — it’s breaches by contracts.

    William J. Brennan, Jr.:

    (Inaudible)

    I would call — not presenting changes made of — I submit the first that I know of whether or not presenting the changes but it was a — this is our joint (Inaudible)

    S.g. Lippman:

    I would first like to address myself to Mr. Justice Frankfurter’s question and I think with his usual perception he’s —

    Felix Frankfurter:

    Pardon me.

    S.g. Lippman:

    I say with your usual perception, you pointed out disturbing elements in the Court’s opinion which indicates a lack of consistency, really.

    Felix Frankfurter:

    But I just like to know what I’m dealing with.

    S.g. Lippman:

    Yes.

    The Court also — I think the essence of the court’s opinion is found in this paragraph.

    What page?

    S.g. Lippman:

    This is found on page 47, the second paragraph in the bottom.

    We believe that the Act enlarging the authority in any District Court of the United States contemplates such authority to be exercised where there’s been a violation of a contract that had been entered into between employer and a labor organization representing employees and (Inaudible) effect in Congress and it thereby contemplates a collective bargaining agreement.

    The agreement that we are here considering is a strike settling of the agreement which we could —

    Potter Stewart:

    The Court of Appeals —

    S.g. Lippman:

    And then the Court —

    Potter Stewart:

    — agreed with that, to agree with your version of —

    S.g. Lippman:

    That’s right sir.

    Potter Stewart:

    — the District Court decided.

    S.g. Lippman:

    That’s right.

    Potter Stewart:

    They — they — they recognized or they said that they understood that there was a contract involved here, I’m now looking at page 52.

    They said on their brief per curium that the contract here involved is not a collective bargaining agreement between so on.

    S.g. Lippman:

    That’s right sir.

    Potter Stewart:

    But they did imply there was a contract then they went on to say that the District Court, their view was correct and thinking that only collecting bargaining agreements were subject to 301.

    S.g. Lippman:

    Yes.

    And you’ll find throughout the opinion of the lower court recognition, at the same time sir, there are the matters you pointed out which just don’t make a consistent picture.

    Felix Frankfurter:

    And what he says in that sentence on page 47.

    The agreement that we are here considering is a strike settlement.

    I can assure you Mr. Lippman I’ve made — I was a counsel for a Commission and acted for it and made a number of strike settlements so denominated in the press and by everybody else and then you report to the President, there were strike settlements but under no circumstances where the enforceable contracts between the parties.

    S.g. Lippman:

    Yes.

    Let me then refer you to another section of lower court’s opinion sir.

    Felix Frankfurter:

    Well it may be — I’m not saying that — I’m not saying any of these things.

    I’m not saying that he was right in saying that there was no contract.

    S.g. Lippman:

    I appreciate that sir.

    Felix Frankfurter:

    I’m not saying he was right that if there was a contract, it was not the kind of a contract under 301.

    Felix Frankfurter:

    I’m not saying either of those things.

    I just — I do think there are distinctions between saying that although you’ve got an enforceable contract either directly enforceable as between the parties or because the third party beneficiary, you do not come within 301.

    Those are very different questions.

    S.g. Lippman:

    I think that the lower court and the upper court both recognized that they have contracts.

    Again, I refer you to page 46 of the lower court’s opinion where the lower court says and the study of the legislative background of the act, and certain decisions with that, we have examined, we are of the opinion that the strike settlement, that was concluded on December 24, 1958 is not such a contract, so he first — the strike settlement as a contract.

    Felix Frankfurter:

    Of course he said (Inaudible)

    S.g. Lippman:

    I appreciate, it was —

    Felix Frankfurter:

    (Inaudible) no one presents in this case particularly of contract between plaintiffs and defendants on page 48.

    S.g. Lippman:

    I recognize there is that loose language but I think being read as a whole, I think he’s referring to collective bargaining agreements, that great deal of colloquy occurred between counsel and the court as to whether or not we have a contract.

    I would like to refer to the Court, and I think Mr. Justice Black didn’t make reference to it but I would fill up my duty to call the Court’s attention to it, on page 8 which is a letter of transmittal in which the strikes settlement itself was appended and the employer says, the conditions to be formed and met by us are of course subject to and conditioned upon the receipt by your organization of guarantees from the respective labor organizations to make the principles enumerate err completely effective.

    Now, I refer the Court to page 30, in which the union in writing accepts it, and this is the letter to Monsignor Doyle and it also partly answers Justice Frankfurter’s question as to what kind of mediation we have.

    We had a mediator who moved between hotels, transmitting and carrying messages and seeking to reach an agreement.

    We say there in the — we acknowledge of the transmittal from the employer to him and the stipulations.

    Then we say we here with agree to — to the conditions and guarantees of the statement of understanding, attached exhibits of subject to proof reading to assure conformity with applicable provisions of the expired contract in November 15, 1957 offer through the L-M-C.

    Actually, the wages, hours and working conditions appended where the wages, hours and working conditions of the expired contract plus additional officer — plus additional offers which have been made through the L-M-C and so we accepted all these things subject to it proofreading.

    Then we say we agree that the success of the undertaking and stability of labor relations depend upon the good faith of the parties, such assurance is a grant on our behalf.

    I might point out, get down to the very —

    Hugo L. Black:

    I believe the company said the same thing or (Voice Overlap)

    S.g. Lippman:

    The company said the same thing and I might point out that this agreement was reached on Christmas eve.

    Monsignor Ryan.

    Doyle.

    S.g. Lippman:

    Doyle sir, excuse me sir, Doyle.

    I further — I’m sorry.

    (Inaudible) Monsignor Ryan.

    S.g. Lippman:

    He said — he said that this was a great Christmas present to the people of Toledo, but of course it didn’t turn out to be such.

    I might end by pointing out that all we have here involved in the last analysis is whether or not an arbitrator’s award participated in by the parties can be enforced that — where the Court has jurisdiction to enforce that arbitrator’s award under Section 301.

    This arbitrator’s award has made pursuant to the strike settlement’s agreement.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    Well, I would say in the — I would say the Court, it was called upon to apply substance of law as to whether —

    William J. Brennan, Jr.:

    (Inaudible) point is, the only thing (Inaudible)

    S.g. Lippman:

    Yes.

    William J. Brennan, Jr.:

    (Inaudible)

    S.g. Lippman:

    No.

    To my knowledge those matters were not determined.

    William J. Brennan, Jr.:

    They were not determined.

    S.g. Lippman:

    They were there — they were not determined.

    He just wouldn’t let us in the door.

    William J. Brennan, Jr.:

    Employer raised (Inaudible)

    S.g. Lippman:

    To my knowledge it was not raised.

    It may have been raised before the arbitrator, but that record is not before us, all that was raised was the sole question of jurisdiction.

    We were not allowed to enter the door and to present our case to the court and that of course is our grievance.

    And we urge the Court to reverse the Court of Appeals and give us an opportunity to seek enforcement of the strike settlement agreement particularly the arbitrator’s award reinstating these two employees to the former stations and giving the union the opportunity to communicate with employees in the employee cafeteria.

    Felix Frankfurter:

    Were you in this case below Mr. Lippman?

    S.g. Lippman:

    No sir, I was not.

    Felix Frankfurter:

    I just wondered whether —

    S.g. Lippman:

    Although I did participate in the strike settlement agreement.

    Felix Frankfurter:

    I’ve got off on the jurisdiction of the Court (Inaudible) the way that it conducted (Inaudible)

    S.g. Lippman:

    Yes sir.

    Thank you sir, thank you.