Sears, Roebuck & Company v. Carpet, Linoleum, Soft Tile & Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO

PETITIONER:Sears, Roebuck & Company
RESPONDENT:Carpet, Linoleum, Soft Tile & Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO
LOCATION:Riverbed of the Arkansas River

DOCKET NO.: 476
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 397 US 655 (1970)
ARGUED: Mar 03, 1970
DECIDED: Apr 27, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – March 03, 1970 in Sears, Roebuck & Company v. Carpet, Linoleum, Soft Tile & Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO

Warren E. Burger:

We’ll hear arguments in number 476, Sears, Roebuck and Company against Carpet, Linoleum, Tile, Local Union 419.

Smetana, you may proceed whenever you’re ready.

Gerard C. Smetana:

Mr. Chief Justice and may it please the Court.

What is involved here is a determination of the status of charging parties under Section 10 (l) of the Act, specifically, whether they have standing to appeal denial of temporary injunctive relief.

Section 10 (l) of the Act is an extraordinary remedy.

It provides whenever it is charge that any person has engaged in an unfair labor practice within the meaning of Section 8 (b) (4) (A) (B) and (C), and specifically here that charging party is a neutral employer in a charge involving violations of Section 8 (b) (4) (B), the secondary boycott provisions of the Act.

So the charging party is one of the person’s contemplated for protection under Section 10 (l).

Statute then goes on to say the preliminary investigation of such charge shall be made forthwith and be given priority over all cases.

In this particular case Sears Roebuck, the petitioner filed a charge with the NLRB, and the NLRB proceeded to make such investigation.

Statute then goes on to say if after such investigation, the officer or Regional Attorney to whom the matter may be refer has reasonable cause to believe such charge is true, and that a complaint should issue, he shall on behalf of the Board, petition a District Court for injunctive relief.

In this particular case, the Regional Director for the NLRB in Denver made such a finding of reasonable cause, and he follow the statutory mandate and sought injunctive relief in the District Court of the District of Colorado.

It is our position that the charging party or neutral — a neutral party such as Sears is in this case is the very person whom Congress when it enacted, not only the 8 (b) (4) provisions, the secondary boycott provision at the time of Taft-Hartley, but also Section 10 (l), the mandatory requirement that the Government seek injunctive relief is the party for whose benefit, in addition of course to the public a benefit, for whose benefit the relief is being sought.

Specifically, the issue in this case —

Is there anyone with the permission of the charging party to be (Inaudible)?

Gerard C. Smetana:

Justice Harlan, the statute says only this with respect to the role of the charging party.

Upon filing of any such petition, the courts shall cause notice thereof to be served upon any person involved in the charge.

And such person, including the charging party shall be given an opportunity to appear by counsel and present any relevant testimony.

That is the extent to which the statute specifically —

It doesn’t make him a party?

Gerard C. Smetana:

Your Honor?

It doesn’t make him a party apparent as he believes?

Gerard C. Smetana:

It is our position —

I know your position.

Gerard C. Smetana:

Yes.

It is — the terms do not explicitly refer to the charging party is a party acceptance so far as the word party is used together with charging.

But it is our contention and we will demonstrate to this Court as we believe we have in our briefs that in reading — in looking to the entire scheme of the Act, in other words, the role, the charging party’s play in the Board proceeding because the same charge which Sears Roebuck here filed gave rise to two proceedings, and gave rise to two concurrent actions.

In fact it happens in this case, they were on the same day, although, they need them to bid.

In this particular case, the Regional Director issued an unfair labor practice complaint alleging that the Carpet Layers respondent union here was violating or he had reasonable cause to believe that the respondent union was violating the secondary boycott provisions of the Act, and similarly, filed a petition for injunctive relief.

Those two cases are still very much alive.

And the Regional Director at all times, critical to our contention here has continued to maintain that reasonable belief or reasonable cause to believe that the union has violated the law or was in the process of violating the law.

Gerard C. Smetana:

For had, the Regional Director —

Potter Stewart:

Whether both cases are still very much alive is one of the questions at issue between you and your brothers, isn’t it?

Gerard C. Smetana:

That is correct.

Potter Stewart:

There is a controverted question of mootness in this case that you are arguing, is there not?

Gerard C. Smetana:

There is a question if this Court would — will wish to hear argument on that question.

I certainly would toward the end of my argument.

I’ll be happy to present our contentions on mootness.

Warren E. Burger:

I think your friend is going to mention it.

Gerard C. Smetana:

Yes, I’m sure he is.

Well, essentially on the mootness question, very briefly, the major position that we would take with respect to mootness is that as a matter of policy, the issues involved — that the orders involved here are short-term orders.

Specifically, injunctive relief under Section 10 (l) of the Act is the kind of relief that normally expires because the dispute is resolved.

And so that if there are some problem with respect to the correctness of the standing of parties in that proceeding, this Court would never have an opportunity to resolve that question if it were to wait — if it could not do so at that time.

And so under the doctrine of the Southern Pacific Terminal case and more recently as this Court said last year in the Moore versus Ogilvie, these are important public questions that will come up again, and that should — that are not rendered moot because of the continuing effect not only upon Sears in this case and another cases, but other parties similarly situated and would escape review but for the mootness doctrine.

Therefore, the mootness doctrine would be set aside.

We also contend that the case is not factually moot.

We say it is not factually moot because for a number of reasons.

Specifically that as in the — as in Bakery Drivers versus Wagshal, the union here to the extent that it has stop picketing what whatever we can infer from that, we can only infer that it did stop picketing pursuant to an order of the Board.

And more specifically, the union maintains the correctness of its position and has so argued that correctness of its position, January 22nd this year in the Court of Appeals for the District of Columbia Circuit maintaining that it believes and continues to believe that the picketing of Sears Roebuck was not violative of Section 8 (b) (4) so that so long as this controversy and the underlying dispute remains, there is still the possibility that the picketing will resume, and that possibility would come about, should the District of Columbia Circuit where the — and what happened here in the underlying cases that the Trial Examiner and the Board found the union to have violated Section 8 (b) (4).

The union moved the District of Columbia Circuit to review that decision and the Sears Roebuck intervened and the Board cross petition for enforcement of that decision.

And in the event, the District of Columbia Circuit remands to the Board there are number of possibilities as to what can arise in that case.

Should there be a remand, it is our contention that there is also then the possibility of a renewal of picketing because there may be some question as to something further the Board might have to do.

In any event, so far as the factual mootness, it is our further contention that the language of the statute, so far as the time during which the injunctive provision runs.

In other words, in Section 10 (l), Section 10 (l) states that the injunction — that the court shall grant such injunctive relief pending final adjudication of the Board.

So, there is another question although it is perhaps not necessary for the Court to resolve that question.

If it resolves the question of mootness on the Southern Pacific Terminal and Moore versus Ogilvie line of cases, it is perhaps not necessary to reach the question of interpretation of those words pending final adjudication of the Board.

But it is our position that pending final adjudication of the Board means when the matter has finally been resolved by the Board and that a settlement will be a final resolution.

In this case, we contend that it has not been finally been resolved by the Board because of the possibility of the remand, because in that situation, the Board would have to do the something further, and we recognized the fact that there is a final Board order here from which the union appeals the statutory language is not clear, but we would contend that that is the meaning of the words final adjudication.

We have no authority other than logic and reason to support that position.

Our argument — before I pass on to the argument, I should briefly summarize any facts that I have in my opening remarks not alluded to.

In this particular case, the picketing and the picketing of Sears Roebuck continued for a period of 10 months.

Gerard C. Smetana:

There was — the argument Your Honor essentially falls into two or three categories.

Our major contention is that the scheme of the Act as this Court has consider the scheme of the Act in its Scofield decision renders that charging parties should have the right to appeal.

The reason for — specifically, what we would urge under the scheme of the Act is that charging parties possess the very rights that are set forth in Section 10 (l).

They possess those identical rights and are treated as parties in the Board proceeding.

And therefore, they should be similarly be treated as parties in the Section 10 (l) proceeding.

We would then also allude to the guidance that the legislative history of the Taft-Hartley Act can give with respect to the question of charging party rights.

When we say that we are party, we use the word party with three specific exceptions.

So, there is no mistake.

We do not say we are the kind of juridical party that one is outside is the framework of the National Labor Relations Act.

We say first, that we do not seek injunctive relief in Section 10 (l), but rather we simply support that which director has done.

Warren E. Burger:

We’ll suspend now for lunch Mr. Smetana.

[Lunch Recess]

You may continue Mr. Smetana.

Gerard C. Smetana:

Thank you Mr. Chief Justice and may it please the Court.

Just to recap for one moment with respect to the — how this case arises and how the appeal comes to this Court.

When the District Court for the District of Colorado denied the injunctive relief which the Regional Director had sought, and it was in that proceeding.

The charging party Sears, the respondent union, and the Board all appeared by counsel and all participated as provided in the Act.

The District Court justice — judge held that there was little probability that the Board would find a violation of law, and therefore denied the injunctive relief.

After this decision, the Regional Director continued in his belief that there was in fact reasonable cause to believe that a violation existed.

We had — we attempted to convince the Regional Director to seek and to appeal from the decision of the District Court.

That request and those request were without avail, and as a time for filing appeal drew near faced with the continued picketing of Sears at its Denver locations faced with the Director’s continued belief there was a violation and with the Director’s refusal to file an appeal, we on behalf of the charging party filed an appeal.

There were then motions to dismiss that appeal for lack of standing filed both by the Board and by the union.

I should add there was one further intervening factor which perhaps has some significance to some of the arguments that have been raised by the counsel for the Regional Director.

After the appeal had been filed, the Trial Examiner who heard the facts of the underlying case in the first instance came down with a favorable decision for Sears.

He found that there was reasonable cause to believe the secondary boycott section of the Act had been violated.

It was within a few days of that decision that we again wrote to the general counsel and requested two things.

We requested first, that perhaps the general counsel, since the picketing was still continuing, would seek injunctive relief under the discretionary section, Section 10 (j) of the Act, and admittedly, we were aware of no case which permitted were the Board had gone for injunctive relief under Section 10 (j), even though this was an area that was covered by 10 (l), but the language of the Act would lead one to believe that it was possible.

We ask secondly of the Board once more that they join us in the appeal.

The Board responded within the few days indicating that they did not choose to file for 10 (j) relief, even if that was available and furthermore, they did not seek to join us in the appeal.

The only reason they gave was at the time for them to join us in the appeal had disappeared.

Gerard C. Smetana:

I think that exchange of letters only has become significant and we have mentioned in our reply brief in view of the Board’s — one of the Board’s contentions here, that — and that same contention made below that if the charging party were to be given the right of appeal and were to be given party rights subject to the limitations which I’ve started to outline before the luncheon break, that would amount to the Board’s losing control.

And the particular — and the Board speaks of control in a number of instances.

There was one kind of control which the Board’s speaks of in the case before the District Court, and there’s another kind of control the Board addresses itself to with respect to the decision whether or not it should appeal.

Now, with respect to the first kind of control, I had started to say that there are — what we contended are, we have rights of a party subject to three limitations.

The first is that we do not seek the injunctive relief.

We simply support that which the Board has done, and we take to position that once the Regional Director has filed his petition for injunctive relief by virtue of the language in the statute, giving us the right to be heard, we have the right to support that decision.

And we have — we relied in the Tenth Circuit upon the Retail Clerk’s case, the Ninth Circuit Retail Clerk’s case, and we would contend that the reasoning of that court with respect to this question is indeed sound.

The second limitation that we would say would afford to a charging party is the fact that the charging party at no time may enlarge or urge an enlargement of the positions taken by the Director in the petitioner that he filed with the District Court.

And it is for that reason that we would distinguished the decision that Justice Marshall then — Judge Marshall rendered in the Second Circuit in the McLeod case because it was — in that case, and the Board and the union have cited the McLeod case as proposition for the fact that charging party should not be granted this right because it’s violative of Norris-LaGuardia.

And in the McLeod case as in — that whole line of cases, it is clear that where the charging party enlarges upon something which the Director seeking in the McLeod case, the charging party was urging that there was some handbilling in that case and the charging of party was urging that there was some misrepresentation with respect to the handbilling.

And the court concluded that the question of misrepresentation was not one of the basis upon which the Board had sought its petition.

And therefore to the extent that the charging party was urging a different result, to that extent, there could be a violation of Norris-LaGuardia.

Finally, with respect — and the District Court — the Tenth Circuit in this case dismissed or granted the Board and union’s motion to dismiss for lack of standing on essentially three grounds.

First that the relief here would constitute a violation of Norris-LaGuardia and they contend the reason for that is in effect, they would be granting injunctive relief to a charging party.

Secondly, the case that we cite and cited to them and cited in our brief, the Ninth Circuit Retail Clerks case, the Tenth Circuit took the position that that case really only refer to the rights of charging parties in the District Court, and therefore was not apposite or helpful to them in determining whether or not we would have standing to appeal and have any rights in the Courts of Appeal.

And finally, the Tenth Circuit took the position that the statutory language that charging parties shall be represented by counsel and present relevant testimony means that and no more.

Now, with respect to the last, perhaps first, whether the language means that and no more, we would then turn to the first, what part of our argument, and we would say that the scheme of the Act, the fact that charging parties, the same party who is before the District Court in the 10 (l) proceeding also proceeds in the case before the Board.

And in that Board case, it is true that the charging party is referred to as a party, but the scheme of the Act as this Court had held in Scofield, the court looks to the overall concern and the overall concern in this Act is the protection of charging party rights.

And particularly here, there is even a stronger protection with respect to the neutral in an 8 (b) (4) situation where there is a mandatory requirement to seek relief.

But in the Board proceeding, the charging party participates at all levels in the investigation, in the issuance of complaint, in settlement, in hearings, appeals and so forth.

Supposing the Regional Director for some reason refuses to bring and now proceeding to the enforcement there?

Gerard C. Smetana:

No.

We would contend —

You couldn’t bring your own proceeding?

Gerard C. Smetana:

No.

That — we would definitely — our position is that our rights only vest after the Regional Director has made his determination.

And should he change his mind and there is a possibility that in a particular kind of situation, he might change his mind.

Warren E. Burger:

I suppose the clarity of the statute on that point helps persuade you there, does it?

Gerard C. Smetana:

Yes.

I think it does Your Honor.

Warren E. Burger:

But it is not clear you will contend on the appellate — on the right of the standing to take an appeal?

Gerard C. Smetana:

No.

I would say the statute is not clear and one of the Board’s principle arguments is that very fact that the statute is silent.

We would answer that in three ways.

First, that that scheme of the Act, in other words, since the charging parties have these rights in the Board case, they also have these rights in the District Court case.

And then, we have cited this Court to the only case that we have unable to find on the — trying to define on appeal the — Justice Marshall’s decision in the Marbury versus Madison, and we would contend that an appeal by its very nature is not the institution of a new cause and is simply to correct of that which was done below.

Thurgood Marshall:

Well, suppose in the District Court at the end of the hearing, the Regional Director says, we want to withdraw the whole business.

What could you do?

Gerard C. Smetana:

If the — Your Honor, if the Regional Director took that position, we would take — we would follow the reasoning of the Ninth Circuit decision in the Retail Clerks case.

We would take the position that the — it is still for the charging party to urge to the Court of Appeals the correctness of the Director’s petition.

Thurgood Marshall:

But this is not the Court of Appeals.

We’re in the trial court.

Gerard C. Smetana:

I see.

Thurgood Marshall:

And there, the end of the proceeding, the Regional Director says we’ve had it, this is it.

Gerard C. Smetana:

Well this — Your Honor, this is exactly again was the situation in the Ninth Circuit case, and in that situation, the charging party, the Regional Director which would happen fairly frequently in this Board cases is that many times, the union and the Director will seek to — the union will say we’ll stop picketing while we resolve the underlying dispute, and the union will offer a stipulation.

And there are times such as in the amicus case here in the Terminal Freight case where the charging party will object to that stipulation.

That is one situation where it arises.

We would contend that the charging party has the right as it did — as the court found in the Ninth Circuit case to urge to the court that there is fact reasonable cause.

Since the Director found reasonable cause, it is for now for the court to determine and the court is not simply a rubberstamp with respect to what the Director has done.

The court is vested with jurisdiction and it must make up its mind and the statute 10 (l) gives the party the right to be heard.

Certainly, it gives the party the right to present relevant testimony.

We would say that that right to present testimony does not mean just that and no more, because that would not be a logical result.

It — apart from that, it has work otherwise.

Example again in —

Thurgood Marshall:

Well, of course Congress could give you the right to bring the action.

Gerard C. Smetana:

Well Your Honor —

Thurgood Marshall:

But it didn’t — Congress did not.

Gerard C. Smetana:

There was — if I could — I will turn to the legislative history and I would contend two things with respect to the legislative history of Taft-Hartley.

I would contend first that when the Taft-Hartley Act was discussed, the legislative history is silent.

With respect to specific reference to these words in the statute, the charging party shall be given an opportunity to appear by counsel and present relevant testimony.

Gerard C. Smetana:

Now, we submit that first so far as that silence is concerned just the silence alone.

That silence does not necessary militate against us.

And Your Honors in the two decision rendered this morning and I was familiar with one because I had kept off with the briefs, particular in the Barlow case that the court said it is however only upon a showing of clear and convincing evidence of a contrary legislative intent that the court should restrict access to judicial review.

The framers of Taft-Hartley, I think we have to look — in view of the silence with respect to the specific language, I think we have to look to the context in which the debates occurred.

And that context was that the debates on Taft-Hartley occurred in 1948, the spring 1948.

Pardon me, in the spring of — yes, in the spring of 1948.

Potter Stewart:

It was an Act of 1947.

Gerard C. Smetana:

I’m sorry, the spring of 1947.

And at that time, the debates occurred in the context of the Senate being concern with President Truman again, vetoing in measure, and it was in the 80th Congress this debates occurred.

In our reply brief, we cited the court, call the court’s attention to some of the deliberations that occurred in the 79th Congress, because it is only by looking to that background that we see the light in which the court was — the Congress was concerned with private party rights.

At that time, two things were clear.

It was clear that the Congress was concerned with protecting neutrals, and the secondary boycott provisions were enacted.

It was also clear that what it transpired between the enactment of Norris-LaGuardia and the Wagner Act and up till that time was unsatisfactory in terms of getting injunctive protection where there was a neutral or where there was a wrong party.

Prior to the enactment of Taft-Hartley, the Board would first have to make a determination on the merits where there was a violation.

And one of the purposes was that there would be a prior determination but that prior determination has the statute finally evolved was to be only upon decision by the Regional Director where there was a violation.

But in the 79th Congress, the Case Bill passed both Houses and that Bill provided that private parties as well as the Board could seek injunctive relief.

And it passed both Houses of Congress.

President Truman vetoed that Bill.

But then — and there weren’t sufficient votes to override the veto.

Immediately at the convening of the 80th Congress, a Bill almost identical to the Case Bill was introduced in the Senate, which is Bill S.55, and it was on that Bill that hearings were held in the Senate Labor Committee.

At the same time in the House, there was a Bill which passed identical to the Case Bill again giving rights to private parties.

It became clear however to — certainly to Senator Taft that if there was going to either be no veto, and if there was going to getting legislation, there had to be some compromise, and time was of the essence the — that Government was operating the minds as the Smith-Connolly Act was going to expire in a few months, and Senator Taft was the one who is to compromiser, and the evidence of his compromise specifically with respect to the question of private party rights and private party rights with respect to the issuance of temporary injunctions comes from the procedures.

S.55 as I say was in the Senate Labor Committee.

Out of that Committee was — came a Committee Report and a new Bill.

The new Bill was called in the 88th Congress S.1126.

And so far as Section 10 (l) was concerned and so far as the rights of charging parties are concerned, the words I referred to they appeared for the first time in S.1126, and subsequently have remained unchanged in the statute.

However, when it was reported out of Committee, Senator Taft, Senator Ball, Senator O’Daniel and one other Senator, all indicated that they would reserve the right on the Floor of the Senate to again introduce once more an amendment to permit private parties to institute these rights.

Now, why was this concerned?

Because they were concerned that the private party was the aggrieved party.

The private party was the one who should be protected and they were concerned that perhaps the Board wouldn’t afford sufficient protection.

Gerard C. Smetana:

When and although Senator Taft, at the time that it was reported out of Committee, still favored private party rights shortly when the debates began on the Floor of the Senate and we’ve cited that in the briefs, he changed his position, and the schism came when Senator Ball was the one who introduced the amendment for a private party rights again on the Floor of the Senate.

Senator Taft at that point said that he could not go forward.

He would offer another compromise, and that the — if the Act was to be passed, it would have to be passed without the rights of private party seeking that relief.

And therefore, I say that since there was such concern with the rights of private parties, the words of Section 10 (l) should not be read narrowly as the Board suggests.

But rather they should be given broader interpretation.

And I would suggest that —

Is there conflict in the agents of Congress?

Gerard C. Smetana:

I beg your pardon Mr. Justice Harlan?

Is there a conflict between the Circuits and —

Gerard C. Smetana:

Oh —

I mean the — your series of question you’re arguing?

Gerard C. Smetana:

Yes.

I would say the conflict — I would say the conflict arises specifically between the Tenth Circuit decision here holding these words to be in exactly what they say, and the Ninth Circuit decision in the Retail Clerks case.

The Ninth Circuit — well, I would call —

I have some big recollection that there is a case in the Second Circuit which was (Inaudible) —

Gerard C. Smetana:

Well, there is —

— is it true?

Gerard C. Smetana:

Yes, Your Honor.

There is this and I didn’t cite it specifically.

The case in the Second Circuit that I think has most bearing on this subject is the McLeod versus the Business and Mechanics Conference case, I believe it was a 1961 case, and that was the case where the decision was written by Judge Marshall — Justice Marshall.

And in that situation, I recited the case briefly for another proposition with respect to the charging party taking a position not urge by the Board.

But the interesting thing about that case is that the charging party was there at all.

I mean the charging party in that proceeding and we did not intervene.

The charging party in that proceeding was there as a party, and the charging party argued as a party and there was no — that although the court was silent with respect to that status, perhaps the question wasn’t’ raised, but certainly inferentially, that case would seem to go along with the position of the Ninth Circuit, although Ninth Circuit came much later.

I would call the Court’s attention to another interesting factor in the Ninth Circuit decision, and that is the — the Ninth Circuit in its decision — the Ninth Circuit in its decision set forth certain headings, and while the Tenth Circuit tries to distinguished the case with respect to saying the case only stands for the proposition that — it is question of the court’s jurisdiction whether or not injunctive relief would be granted.

In reality, the headings that I’ve reference to it, it is rather unusual to see specific headings said to an opinion.

All of the discussion with respect to charging party rights is in heading Roman numeral II, and it is an uppercase, and it says to whom was the temporary injunction granted?

And that’s at 351 F.2d 528.

We have cited the case, but not made specific reference to that.

And the court drew a distinction between on the one hand discussing the charging party rights, and on the other hand discussing the question of its own authority for when it was talking about its own authority.

Gerard C. Smetana:

The heading is “allege abuse of discretion” and talking about the fact that the Board they’re appealed and claim that the court had abused its discretion when it granted the injunction because the Board orders that the injunction had been granted to the charge of parties.

I would call the Court’s attention to the Scofield case, insofar as it sheds light on this question.

I think the general concept — I think the position of the Board and the union and the court has been Scofield is to be read narrowly, and we of course take the position that Scofield stands more than just for the proposition, the question of multiplicity of suits that occurred in that context.

Scofield stands for the proposition that it recognizes private rights.

In fact for the concept of recognition of private rights, this Court cited the Ninth Circuit Retail Clerks case which had earlier reached a same conclusion and the court spoke in terms general fairness.

The court recognized also that the status of the amicus was not status enough.

I will reserve my balance of my time.

Warren E. Burger:

Thank you.

Mr. Manoli.

Dominick L. Manoli:

Mr. Chief Justice and may it please the Court.

I should like to discuss first on the standing question.

And after I’ve dealt with that standing question, I should like to address myself to the mootness question.

And before I go into a discussion of our particular problems, I’ll answer very quickly Mr. Justice Harlan’s question.

There is no conflict among the circuits on the question of the right of the charging party that turned out proceedings to appeal of an adverse decision.

If my memory serves me right, they’re going again three instances in which a charging party sought to appeal independently from the Regional Director, from an adverse decision of District Court.

This is one of them.

The other case was in the Fifth Circuit which was found to be mooted by the fact that the Board had issue its decision, and the third case is another serious case in the Third Circuit which the Court has also found to be mooted and I’m told, I was told yesterday that’s presently pending on petition for reconsideration or rehearing.

The other case that Mr. Justice —

Potter Stewart:

And it’s pending in the Court of Appeals for the Third Circuit on the petition for rehearing?

Dominick L. Manoli:

Right.

Potter Stewart:

Right.

Dominick L. Manoli:

Yes.

The other case that Mr. Justice Harlan may have had in mind was the General Electric case that involved the 10 (j), the discretionary provision and it did not involved the question of standing.

Third Circuit is the one that I was thinking of.

Dominick L. Manoli:

Yes, sir.

To refresh my recollection.

Potter Stewart:

And then the General Electric case, what did the court hold?

Dominick L. Manoli:

The —

Potter Stewart:

In the 10 (j) case?

Dominick L. Manoli:

There was no question of standing in that case Your Honor.

Dominick L. Manoli:

We had gotten — Board had gotten an injunction in that case.

Potter Stewart:

And?

Dominick L. Manoli:

The Board got an injunction in that case and the company took an appeal to the Second Circuit.

The —

Byron R. White:

In the unfair labor practice situation, a charging party who loses before the Board may appeal, may it not?

Dominick L. Manoli:

Yes, under Section 10 (f) of the Act, it is — if it is agreed by the Board’s final order —

Byron R. White:

Yes.

Dominick L. Manoli:

It may of course seek review in the Court of Appeals.

Byron R. White:

And if the Board enters an order of — in the — on — at the request of a charging party, and then seeks enforcement —

Dominick L. Manoli:

Yes, sir.

Byron R. White:

In the Court of Appeals and loses, can be the charging party who intervened bring sort of here?

Dominick L. Manoli:

Well, I think you decided that question in Scofield, Your Honor.

Byron R. White:

Yes.

Dominick L. Manoli:

In Scofield, this Court —

Byron R. White:

Even though the Board doesn’t want to press it any further?

Dominick L. Manoli:

That’s right.

We — in Scofield, this Court held that both the successful charging party, as well as the successful charged party had the right to intervene in the Court of Appeals and to take the case up in the District Court —

Byron R. White:

But the laws — if the Board enters an order as requested by the charging party, but the Board doesn’t want to seek enforcement.

Dominick L. Manoli:

I think that’s exclusively up to the Board.

Under the —

Byron R. White:

Charging party may not seek enforcement to the Court of Appeals?

Dominick L. Manoli:

No sir.

Only the Board may bring an action to enforce its order.

Now, a party which has lost before the Board may bring a petition to review —

Byron R. White:

That’s right.

Dominick L. Manoli:

— the Board’s adverse decision has an aggrieved party.

That may be either the charging party who didn’t succeed before the Board, or it may be of course the charged party who lost before the Board.

Byron R. White:

Yes.

Potter Stewart:

But now in this Ninth Circuit case, Retail Clerks —

Dominick L. Manoli:

Yes, sir.

Potter Stewart:

— it appears that the Regional Office initiated proceedings for an injunction under 10 (j)?

Dominick L. Manoli:

10 (l).

Potter Stewart:

10 (l), I beg your pardon.

Then reached some sort of a compromised agreement with the union.

The court — District Court nevertheless went on at the behest of the charging party and granted the injunction.

Dominick L. Manoli:

Yes, sir.

Potter Stewart:

The Regional Director then appealed, although he’d been the regional plaintiff, he appealed from a decision which had gone in his favor as a regional plaintiff.

Dominick L. Manoli:

Yes.

Potter Stewart:

The relief he’d originally asked for and the appellee in that case was the charging party, is that right?

How the appellee get in the case as a party in the Court of Appeals.

The appellee is the Food Employers Council, Incorporated and I assume that’s the charging party.

Dominick L. Manoli:

That was corrected Your Honor.

And in the Henderson case, which is recently come down — which is recently come down and out of the Ninth Circuit.

Potter Stewart:

No, no.

I’m asking about this case.

Dominick L. Manoli:

Yes sir, I know.

Potter Stewart:

The specific question, how the appellee, the appellee was a charging party here and therefore, was a party in the Court of Appeals I gather, but as an appellee and not an appellant.

Dominick L. Manoli:

The —

Potter Stewart:

That Board itself apparently made him an appellee.

Dominick L. Manoli:

In the — I forgot it at the moment.

The Food Employers Council there was named as an appellee.

Potter Stewart:

And assume — I assume the Council was the charging party?

Dominick L. Manoli:

This Council was the charging party in the particular case.

Potter Stewart:

So the Board, the Regional Director of the Board by then when it took its appeal may charging party, a party to the litigation in the Court of Appeals, does not?

Dominick L. Manoli:

The name threw me off Your Honor in that particular case.

It was not the Regional Director who took up the appeal.

It was the Retail Clerks who took an appeal.

The Retail Clerks where the — where the —

Potter Stewart:

No, that’s not the way Judge Barnes opinion begins, the very first sentence.

This is an appeal by the Regional Director of the NLRB and various locals of the Retail Clerks from a District Court order granted a temporary injunction pursuant to a petition by the Regional Director, and so on.

Potter Stewart:

So I —

Dominick L. Manoli:

— where is that case here?

Well, my recollection was that it was just that that was the union who appeal in that case and then we went in there to defend our own position.

And whatever, whatever may be said of that case Your Honor, I do want to call attention to the latest decision of the Court of Appeals of the Court of Appeals for the Ninth Circuit in which they said, in which it said that although the question of the charging party standing to appeal was broached in the Retail Clerks case.

They nevertheless had now concluded that the charging party does not have the status of a party, of a full party where the right of appeal and they’ve lined up for the Tenth Circuit in this particular case.

Now, if I may get back now for a moment to develop my argument with respect to the contentions of the petitioner, the petitioner’s case that a charging party in a 10 (l) proceedings is entitled to seek to appeal from an adverse decision of the District Court independently of the Regional Director, it seems to me rest essentially upon the predicate — upon the predicate that a charging party with certain qualifications that the petitioner here has indicated as a status of a full party in those proceeding — in those proceedings.

Now, it seems to us that that predicate, that predicate misconceives the statutory scheme and also fails to accord proper way to the legislative history that gave birth to Section 10 (l).

In our view, under the statute, a charging party plays a subordinate role in a 10 (l) proceedings in the District Court.

It’s — Congress vested upon the charging party.

The limited role of assisting and aiding in the course of the prosecution of the case by the Regional Director, but that it is the Regional Director who contains or retains control not only over the initiation, not only over the initiation of the proceedings in the District Court, but also retains control of the litigation at all stages both the appellate — both the trial stages, as well as the appellate stage.

Now, Section 10 (l) represents one of the many compromises that is to be found in this statute.

And as in the case of other labor act compromises which have engage the attention of this Court, the meaning of Section 10 (l) and the role which a charging party was to play in the proceedings can only be fully determined by going back to the legislative history.

I think it’s not wholly amiss to say that in the case like this, a page of legislative history does outweigh a book of logic.

Section 10 (l) became a part of the Act as Mr. Smetana has indicated in 1947 when Congress adopted the Taft-Hartley amendments, including the restrictions against secondary boycotts and strikes over jurisdictional disputes.

In the course of that delay, Congress took note of the fact that the administrative unfair labor practice proceedings before the Board where unduly and unavoidably time-consuming.

And for that reason, it was felt that in the speedier remedy was required in the public interest rather than a Board order or a court decree enforcing that Board order.

The debate over the need and the means for achieving this kind of speedy relief was particularly acute in the area of secondary boycotts as jurisdictional disputes.

The Senate Labor Committee had reported a Bill which contained a provision virtually identical with Section 10 (l) of the statute.

Now Senator’s Ball, joined particularly by Senator Taft, Senator O’Daniel and also by Senator Wherry of Nebraska, I should have added also Senator — I did said Senator O’Daniel.

They were critical.

They were critical of the Section 10 (l) provision which was contained in the Senate Bill, the Bill that have been reported by the Senate Committee because he felt that it was inadequate, wholly inadequate to give an employer who is involved in the secondary dispute, or was involved in the jurisdictional disputes that kind of speedy relief, that kind of relief that they thought he was entire — entitled to.

They were critical of the Senate Committee Bill because as Senators Ball, Taft, and O’Daniel said in their supplemental views — their supplemental views to the Senate Labor Committee’s Report.

As they said there, “It depends upon the decision of the Board as to whether any action shall be taken and the conduct of the proceedings would be entirely in the hands of the Board attorneys instead of attorneys of the injured party.

Warren E. Burger:

Well are you — were they addressing themselves to the initiation at this point?

Dominick L. Manoli:

No, Your Honor.

I think that when you look at the entire legislative history that the fight was much deeper than that, it was not merely a question about who is going to initiate this thing but who was going to reach — have control not only over the initiation of the case but at the prosecution of the particular case.

Warren E. Burger:

Well, but do you suggest that the grantor standing to the employer at the appellate stage for review only would take control of the case away from the Board?

Dominick L. Manoli:

Yes, Your Honor, I think it would because at that point, at that point, the Regional Director who initiated the case may conclude for various reasons, now I come to those later, may conclude that there is really, it’s no longer appropriate.

It’s no longer appropriate to continue to press at the appellate stage for an injunction on basis of the kind of record that was made in the court below, on the basis of what kind of issues were involved there.

If the Regional Director decides not to go on but the charging party may go on, the charging party has really taken control of the litigation.

Warren E. Burger:

Well, —

Dominick L. Manoli:

And the litigation —

Warren E. Burger:

— that had been true if the Board drops out, the Board refuses to go ahead and I could understand your argument that the private party has taken over but would that not be something of the signal to the courts if standing were granted to the private party to go ahead and the Board did not appear to take part.

It certainly wouldn’t strengthen the private party’s case at the appellate level, would it?

Dominick L. Manoli:

Well, I perhaps not but if they say, the Regional Director decides that on the basis of whatever record has been made before the court — the District Court on the basis of the kind of issues that are involved in, he may still continue to press the complaint.

He may so continue to press the complaint before the Board, before the Board either with the expectation that a better record may be made before the Board or that the Board may see the facts differently — may see the facts differently that the District Court did because the District Court decision is not binding upon the Board under merits.

But at that point however, the Regional Director has made a decision that it is no longer appropriate to press for an injunction at the appellate stage.

The statute requires — the statute requires a Regional Director whenever he has reasonable cause to believe that the charges have merit.

He is required to go into the District Court to seek an injunction but the statute does not require.

The statute does not require a Regional Director to go on to appeal from an adverse decision of the District Court.

Now, if you permit the charging party, if you permit the charging party to say, well, independently taken appeal despite the failure of the Regional Director to take an appeal, in effect what you’ve done, you transformed — you transformed what is a Government piece, Government litigation into a private, into a private lawsuit.

And indeed, indeed the petitioner in its brief, I think almost virtually concedes at that point almost becomes a private lawsuit.

Now, to be sure — to be sure that petitioner is arguing — the petitioner is arguing that it is confined to the theory of the case originally advanced by the Regional Director and that is confined also to the kind of relief that the Regional Director is asking but I suggest Your Honor that once the Regional Director is out of the picture, and the charging party is permitted to go ahead and take an appeal that then it truly has become a private piece of litigation rather than a Government litigation and Congress, and Congress did not intend to permit that.

Potter Stewart:

How far does your argument go Mr. Manoli?

Now, Congress — what Congress did provide in 10 (l) was that if the Regional Council thought there was reasonable cause to believe that the unfair labor charge was correct, it had an absolute duty to file, to go to a — first of all had a duty to give priority to this kind of a charge.

Dominick L. Manoli:

Yes, sir.

Potter Stewart:

And having given priority and then making a — having finding reasonable cause to believe that he choose to charge and had an absolute duty to go to a federal district court and file a petition for an injunction, and you say I suppose in your argument that 10 minutes later it could say, “Well, we want now to dismiss the injunction.”

That would hardly concord with the obvious will of Congress, would it?

Dominick L. Manoli:

Well, Your Honor, let me take one case.

Let us assume that when the charges are filed, the investigations been made, the Regional Director concludes that there’s reasonable cause to believe that the charges have merit and that a complaint were issued, yes, he is mandated by the statute.

Potter Stewart:

Mandated by statute, the Congress stands.

Dominick L. Manoli:

He is mandated by the statute here —

Potter Stewart:

Seek an injunction.

Dominick L. Manoli:

— to go under the District Court to seek an injunction.

Potter Stewart:

Right.

Dominick L. Manoli:

Now, on the basis of the developments in the District Court, he may conclude, he may conclude that there’s no longer any merit to the unfair labor practice charges and that there’s no longer any basis for injunctive relief.

In other words, with that kind of a record, having been made in the District Court, he may because they conclude that he’s got no case at all anymore and Congress did not require them to sticky with the case willy-nilly nor did Congress require him to take an appeal from an adverse decision of a District Court.

Potter Stewart:

Isn’t it all the Congress required was that he file the petition and that 10 minutes later, he could say, I now want to dismiss it?

He was prejudiced.

Dominick L. Manoli:

Yes.

Dominick L. Manoli:

That’s what — if he concludes.

Potter Stewart:

Do you think that comports with what the Congress said in 10 (l)?

Dominick L. Manoli:

Your Honor, I think it does.

Let’s say that he files a petition now, and 10 minutes after he’s filed the petition a piece of evidence which was critical to his case, it suddenly is exposed.

It isn’t there anymore.

It isn’t there anymore and the piece of evidence is critical to his case.

He is free to withdraw.

He is free to withdraw that because he’s got no case anymore under the merits.

He won’t issue a complaint.

There’s no reasonable cause to issue a complaint to go to the Board and having no reasonable cause to issue a complaint or at least he would withdraw the complaint if that were to happen, then there’s no basis anymore for an injunctive relief by the District Court.

Potter Stewart:

Couldn’t have been much for a preliminary investigation.

Dominick L. Manoli:

It’s a rare case, Your Honor when that will happen.[Laughter]

It’s a rare case indeed when that will happen but I’m addressing myself to the question of whether could he withdraw 10 minutes later?

A 10-minute rule might sound more realistically than months?

Dominick L. Manoli:

Yes.

Yes, it doesn’t happen.

Even it kept your legislative history —

Dominick L. Manoli:

I think I can safely say, I know of no case where ten minutes after we filed a petition for an injunction, we withdrew.[Laughter]

Well, if I may go on a little bit more here with this legislative history because I think it’s important.

This legislative history and I can only touch the highlights of it to indicate what the scope of the debate and the intensiveness of the debate as to who was going to be in charge of this particular litigation?

And Senator O’Daniel on the Floor of the Senate, I’ve already read from the supplemental views of Senators Taft and Ball and Senator O’Daniel on the Floor of the Senate, he said, he saw no reason under heaven why the decision to seek injunctive relief and control of the litigation should be exclusively vested in a Board representative rather than an injured party and the Senator Wherry added, the injured party and I want to quote this, “should not have to depend upon the judgment of some bureaucrat in whom it lies the power to determine why such a course should be followed.”

And again they strongly urged to Senator O’Daniel that the injured parties should have and I want to quote this once more, “should have the right to control its own litigation, to hire its own lawyer, to take such steps as it deems proper and to go into such Court as it deems proper to proceed in.”

Now, to achieve this purpose, Senator Ball introduced his amendment and under his amendment, he introduced the amendment on the Floor of the Senate under his amendment, the charge — a party who was suffering from a secondary boycott or a jurisdictional dispute strike would have the right independently to go into a District Court and obtain injunctive relief.

That proposal encountered strong opposition.

Some members of the opposition were unwilling to permit injunctions whether at the request of private parties or at the request of the other Government.

But the opposition was subtlety and I might say, they vehemently opposed to any provision that would permit a private party to go and seek an injunctive relief in these kind — in these type of cases because — because they feared a revival, a resurrection of some of the evils that had led to Norris-la-Guardia.

They were willing — they were willing to relax the restriction of Norris-la-Guardia only if, only if the exclusive authority to initiate and to control the litigation at 10 (l) proceeding was vested in the Board.

Now, the difference between the two groups was taken care of.

It was taken — it was resolved through a compromise that Senator Taft proposed as a substitute, as a substitute for the Ball amendment which would have given a private party the right to independently go into a District Court and get an injunction as the substitute for that, Senator Taft proposed what is now Section 303 of the Act.

And Section 303 of the Act permits an injured party to go into a Court in order to get damages.

Dominick L. Manoli:

The Ball amendment was overwhelmingly defeated by a vote of something like 62 to 28 and Section 10 (l) of course was retained in its present form.

And Senator Taft after the Conference Committee had approved Section 10 (l) and Section 303 provision of the statute explained that compromise Senator Taft said that under that compro — under his proposal, the compromise which had been accepted, the injured party was given “simply a right of suit for damages” caused by secondary boycotts or jurisdiction disputes but that in such cases, again I want to quote, “the injunction can be obtained only through the National Labor Relations Board.

I think what emerges from this legislative history is that Congress agreed to a narrow exceptions of Norris-la-Guardia which vested the exclusive jurisdiction in the Board or the Regional Director, I used the terms interchangeably, which vested exclusively control in the Board over the — not only the initiation but the control of the litigation at all stages.

The private party, the injured party was given simply the right to sue for damages and in Section 10 (l), in Section 10 (l), Congress assigned a subordinate role to the charging party of merely aiding and assisting in the conduct of the 10 (l) proceedings by the Regional Director, but it was the Regional Director who remained in control and as I said earlier, the fight between the proponents of the Ball amendment and the — and those who opposed it was not simply a fight where who is going to have control over the initiation of the proceedings, the fight went much deeper.

The fight was who would be in control of that kind of litigation, the injured party or the Board?

And Congress answered that question firmly in favor of the Board and I believe that its action indicates that Congress withheld from the charging party the status of a — of a party, the status of a party.

Warren E. Burger:

Well, let me know —

Dominick L. Manoli:

The status of a party —

Warren E. Burger:

You keep emphasizing control of the litigation as though litigation were just one indivisible component.

The many instances where this Court and other courts have grantor standing to seek review or a standing in the first instance or intervention was denied, is that not so?

Dominick L. Manoli:

Yes, that — that may well be, Your Honor.

But —

Warren E. Burger:

So that the control of the litigation concept doesn’t answer all the questions quite, does it?

Dominick L. Manoli:

Well, it answers it when you take into account what it was.

What it was that the — what I’ll call the proponents of Section (l), sought to accomplish when they adopted Section 10 (l) and opposed, and opposed the Ball amendment.

They were fearful, they were fearful to give the charging party any kind of an independent right, independent right to press for and to seek an injunction or to press for injunction and as I said earlier, if the Regional Director concludes after he has carried out the mandated duty of going into a District Court, that in the face of that adverse decision and because of other considerations I’ll spell out in a moment, he concludes that it’s no longer appropriate to seek injunctive or to press for injunctive relief then the charging party has taken charge of that litigation and it seems to me that the kind of control that Congress was talking about would have — would exclude, would exclude the charging party from going on upstairs and seeking to press for an injunctive relief.

Well, this language in 10 (l) that you say is the charging party a support position, is that part of the so-called 10 compromise?

Dominick L. Manoli:

That was already Your Honor.

In the Senate Bill, that is in the Bill reported by the Senate Committee, yes that was already in there.

That was already in there.

As matter of fact, I might add that the — that the House had passed the bill which permitted both the Government or the private party to seek injunctive relief but that felt by the way sad because eventually the conference committee agreed, agreed with the Senate that Section 10 (l) would be adopted.

Potter Stewart:

Well, the thrust of your argument now is quite in conflict with was decided in the Retail Clerks case in the Ninth Circuit, the broad thrust of your present argument.

Dominick L. Manoli:

Your Honor, I must confess, I’m a little bit taken by surprise by your question that we were, that we appealed —

Potter Stewart:

Well now, I say that I’m not now talking about the appeal.

Dominick L. Manoli:

Let me read from the Retail Clerks.

Thurgood Marshall:

From which case?

Dominick L. Manoli:

The Retail Clerks case in the Ninth Circuit.

Potter Stewart:

Read the very first sentence of Judge Barnes’ opinion, I don’t have it in front of me.

Dominick L. Manoli:

Yes.

Potter Stewart:

The very first sentence of Judge Barnes.

Potter Stewart:

I don’t have it in front of me.

Dominick L. Manoli:

This is an appeal by the director and various locals of the Retail Clerks.

Warren E. Burger:

Would you raise your voice a little, counsel.

Dominick L. Manoli:

Oh!

I’m sorry.[Laughter]

This is an appeal — I didn’t need to hide it.[Laughter]

This is an appeal by the Regional Director of the Board and various local of the Retail Clerks from District Court order granting a temporary injunction pursuant to petition by the Regional Director.

Now, on page 528, 528 says, “the appellants petition to this Court for a stay of the injunction” and I take it the appellants must admit both us and the Retail Clerks.

This petition was denied but he granted an expedited hearing.

By the same order, this Court denied the charging parties in the Board proceedings permission to intervene as appellees but granted them permission to appear as amicus curiae.

Potter Stewart:

But look at the caption of the case, who’s the respon — who’s the appellee?

As I say, I don’t have in front of me but I think my memory is —

Dominick L. Manoli:

The caption is appellants, Retail Clerks the appellants, and Ralph E. Kennedy, Regional Director — the appellant.

Potter Stewart:

Appellee.

No, I say, who’s the appellee?

Dominick L. Manoli:

It says appellant here on the — at the top of the, top of the case.

It says, Retail Clerks, Locals — various sort of Locals, appellants and Ralph Kennedy, Regional Director for and on behalf of the Labor Board, appellant.

Potter Stewart:

Don’t you have any appellee in the case?

Dominick L. Manoli:

Versus — excuse me, versus Food Employers Council, appellee.

Potter Stewart:

Appellee, that’s the party in the Court of Appeals.

Dominick L. Manoli:

The Food Employers Council, yes, that was charging party, that was appellee.

And the Court says with respect to the answers by the same order this Court denied the charging parties in the Board proceedings permission to intervene as appellees but granted them permission to appear as amicus curiae.

Potter Stewart:

Well, I wasn’t — we can close look at those books but I — my question wasn’t directed to that at all.

It was directed to — if I understand the basic thrust of your present argument, i.e. that the Regional Director of the Board is given absolute control of the litigation from first to last —

Dominick L. Manoli:

That’s right.

Potter Stewart:

That is quite contrary to the decision of the Ninth Circuit in the Retail Clerks case, am I mistaken in my understanding of your argument?

Dominick L. Manoli:

The — that is our argument and to the extent that it may be in account of Retail Clerks, I will call attention once more to the Henderson case which a Court just decided within the last few months and which is cited in our brief where they line up — where they line up with the decision of the Court of Appeals in this particular case.

Potter Stewart:

Yes, on the appealability, on the right to appeal.

I’m talking about the right to control.

Dominick L. Manoli:

On the right to appeal, but I think those are the underlying considerations really as to why they don’t have the right to appeal.

Dominick L. Manoli:

Well, I did promise at the beginning though I haven’t covered all the considerations but I think I made the clear, the heart of our argument with respect to this power to appeal.

I did indicate earlier that I would say something about the mootness question and before I sit down, I shall address myself to that question.

I see my light is flashing and I don’t want to deprive my brother of any time unless the Court is willing to give me a few more minutes, I will sit down.

Warren E. Burger:

Is that your red light, I was reading the —

Dominick L. Manoli:

That was my red light, Your Honor.

Potter Stewart:

I’ve ask to — I’ve taken up a lot of your time.

Dominick L. Manoli:

May I have a few more minutes, so I can talk about the mootness?

Warren E. Burger:

You may go ahead.

Dominick L. Manoli:

Alright, sir.

Thank you.

The statute provides that a District Court may grant such injunctive relief as it deems just in proper pending the Board’s final adjudication with respect to the matter whether or not this case is moot depends upon what do we mean by pending final adjudication by the Board, by or the matter by the Board.

Hugo L. Black:

Based on, what did you say?

Dominick L. Manoli:

What do — what does that phrase mean?

That the District Court has the authority to grant interlocutory injunctive relief pending at the final adjudication of the matter by the Board.

The Board has issued its decision and final order in this case and we say that that final — that decision and final order of the Board is the final adjudication of this case within the meaning of Section 10 (l) and with the issuance of the — and with the issuance of the Board’s decision which as I say, constitutes this final adjudication the power of the District Court, the power of the District Court to grant any kind of injunctive relief in this case is that an end.

Now, the union has in fact, the union has in fact stopped the picketing.

As I said, the Board’s decision and order is presently pending on review in the Court of Appeals.

If the union should resume, if the union should resume its picketing in defiance of the Board’s order, the Board is empowered under Section 10 (e) and (f) to go to the Court of Appeals, to go to the Court of Appeals and ask for such temporary relief as maybe appropriate in the circumstances.

It’s not mandated, but it’s empowered to do so and presumably if there’s a violation of the Board’s order in this case, it assured that the Board should proceed very long in seeking to get some kind of temporary injunctive relief from the Court of Appeals.

Now, the argument that’s being made in this case here that final adjudication by the Board and I’ll be through in just a few minutes Mr. Chief Justice.

The argument that’s being made in this case here that final adjudication by the Board does not mean — the decision of the Board in this particular case but that the case is not finally adjudicated until it’s run its entire course before the Board as well as the courts and I may briefly ask by saying that the statute does not say final adjudication by the reviewing court, it says final adjudication by the Board.

We think the case is moot and I may say that I have mixed feelings about our mootness question and having come to this — coming this far because well, I think that our argument on the mootness is very strong, at the same time I would like to have an answer from the Court as to the standing of the charging party in these cases.

Warren E. Burger:

You’d like to have it resolve if we’ll resolve at the right way?

Dominick L. Manoli:

Either way, Your Honor, either way,[Laughter]

Warren E. Burger:

Thank you, Mr. Manoli.

David S. Barr:

Mr. Chief Justice, may it please the Court.

Mr. Justice Stewart, the Food Employers Council case in so far as its decision is concerned is not in conflict with the position we take in this case.

The decision was that despite the fact that the Regional Director might have preferred a settlement and thereby a dismissal of the petition, he could not tie the hands of the District Court in so far as the discretion of that Court is concerned in fashioning the remedy.

That is not in conflict with the position we take.

The dictum in Food Employers Council is in conflict with the position we take and the dictum was eliminated for all intents and purposes in the Henderson case which Mr. Manoli referred to where they denied the right to intervene.

David S. Barr:

The statute if it please the Court is not silent on the question of the role of the charging party and in fact, the language includes more than just the rights of the charging party but the role of all other persons involved in the charge.

It says, upon the filing of any such petition, the Court shall cause notice thereof to be served upon any person involved in the charge, and such person including the charging party shall be given an opportunity to appear by counsel and present any relevant testimony.

That means that what we’re talking about in this case is not only the appeal rights, the independent appeal rights of the charging party.

But we’re also talking about the independent appeal rights of all the primary and secondary employers in every secondary boycott case.

For example, in this case, Joe and Eddie’s Carpet Service, if Sears is allowed to appeal, it would also be allowed to independently appeal.

And so would under this language every other primary and secondary employer involved under Section 10 (l) because of its language.

So, it’s important to realize that we’re talking here about more than just a charging party’s role; we’re talking about these other persons’ roles as well.

The language to appear by counsel and present any relevant testimony is language of limitation.

Warren E. Burger:

Mr. Barr, all of that argument is addressed to the litigation in the first stage and we’re more or less beyond that, aren’t we?

We’re talking about standing on appeal —

David S. Barr:

Yes.

Warren E. Burger:

— not standing for review.

David S. Barr:

I’m talking precisely Mr. Chief Justice, about standing to appeal, standing to appeal when the Regional Director refuses to do so.

If the language — if the language shall be given an opportunity to appear by counsel and present any relevant testimony gives the right of appeal.

Warren E. Burger:

Is that the language that you used when you’re talking about an appellate review?

Isn’t that the language you used when you’re talking about the first stages of the litigation?

David S. Barr:

Yes.

Warren E. Burger:

There’s no evidence to present it in your appellate level.

David S. Barr:

No, the statute, I admit, does not say precisely there shall be no right of appeal.

Warren E. Burger:

And I want to have you interrupted for a moment.

David S. Barr:

But it is less than — it is less than language which would have given them party status.

Congress did not say that charging parties shall be a party in the 10 (l) litigation even though in that very same Section, Mr. Chief Justice Burger, in the third proviso, the labor organization in the 10 (l) is expressly referred to as a party litigant.

Warren E. Burger:

Now —

David S. Barr:

Now, that same language —

Warren E. Burger:

Of course, you haven’t — you haven’t had a chance really to digest the opinions that Mr. Justice Douglas read this morning in connection with the Data Processing case with Barlow case but I suspect you glanced over them.

In both of those cases, there was nothing in the statute that gave any more aid and comfort to the idea of the appellate review, really, and there is here, would you agree to that or do you think that might be a little bit more?

David S. Barr:

Unfortunately, the decision that was read this morning has not been read by me and so I cannot compare, I cannot compare the facts in that case to this one but I would like to say.

Warren E. Burger:

We won’t take advantage of you then.

David S. Barr:

I’m very sorry about that.

I would like to say that — that quite apart from what may be said in those decisions, I don’t know if you had in those decisions the limiting language that you have here with regard to simply the right to present a relevant testimony to appear by counsel and present a relevant testimony when viewed in light of the fact that Congress used the word party and knew how to use it not only in this same Section but in Sections 10 (c) and (e) and particularly in light of the statutory scheme whereby the Board only empowered to seek injunctions under Section 10 (l), to institute injunctive proceedings under 10 (j), to seek interim relief in the Courts of Appeals under 10 (e) and (f) and even under 10 (f), Mr. Chief Justice where the aggrieved party is the party that appeals, the interim relief can be afforded to the Board and not to the party that appeals.

David S. Barr:

So that, not only the language but the statutory scheme is evidence, is evidence that Congress intended those words to limit the role of a charging party as well as the other persons involved in the charge and of course the legislative history as far as we are concerned is absolutely compelling because both Senator Ellender, strong supporter of S.1126 and Senator Taft, its chief sponsor had to rise and make statements to the effect that they strongly feared what would happen if private litigants were given access to the injunctive process.

What would happen to the remainder of the legislation?

They thought, they’d lose it and so they have to give up the notion that control of the litigation could be vested in the private litigants and there was no question in the debates of the Ball amendment that what they were talking about was not just the right to initiate a suit but as Mr. Manoli correctly pointed out, the right to control litigation and what evolved — what evolved from the legislative process after a lengthy and very emotional debates on this very point not on the point of appeal, but on the point of the role of charging parties was essentially a compromise just as in much of the other labor legislation that we have on the books.

But it’s important to understand the nature of that compromise.

The compromise was not ambiguous language leaving it up to the courts for interpretation.

The compromise was that there would be a Section 303 rights on the part of employers to sue unions for damages in the event of secondary boycotts, that the proponents of the Bill would also have the benefit of a mandatory injunction under Section 10 (l).

It wasn’t discretionary.

And incidentally, unions don’t have a similar right to the right given employers under Section 303, unions don’t have the benefit of any mandatory injunction as employers do under Section 10 (l) and in return for that, in return for those protections, the proponents of the strong bill had to give up the notion that private litigants could control Section 10 (l) litigation and that limiting language was fashioned as a part of that compromise.

Hugo L. Black:

I suppose, your argument, is somewhat similar to an argument you had make where a man charges another with a crime by an affidavit that’s authorize but he does not have control of the litigation.

David S. Barr:

The prosecutor state, that’s correct Mr. Justice Black.

We’re talking about the prosecutorial functions of the Regional Director of the Board.

We submit that it strains credulity to believe that the fight in the Congress was simply over who initiates these proceedings.

Warren E. Burger:

But wasn’t that what all the emotion was about that you spoke of?

David S. Barr:

No.

Warren E. Burger:

Emotional debate.

Do you find something in the legislative history?

David S. Barr:

Yes.

I would like to quote if I may, Mr. Chief Justice, from page 27 of our brief, this is the debate involving the Ball amendment and it was a colloquy between Mr. Ball and Senator O’Daniel who supported his amendment.

Senator O’Daniel posed the hypothetical.

He said, under S.1126, if the representative of the National Labors Relations Board shall decide that the proceeding shall be filed.

Control of the litigation is exclusively vested in the representative of the National Labor Relations Board rather than in the person who claims to have been injured is not that correct.

Mr. Ball said that is correct.

Warren E. Burger:

What does that have to do — what does that have to say about the reviewability aspect?

David S. Barr:

I conceded Mr. Chief Justice and I do again, there is no legislative history that specifically says charging parties shall not have the right to appeal where the Regional Director refuses to do so.

Therefore, the question has to be answered by looking at the language of the Section, by looking at the scheme of the statute and by looking at expressions like these which indicate what Congress probably intended with regard to the issue before this Court and this is the exercise we are going through right now.

Senator Wherry —

Byron R. White:

Why should you not if the statute says that the parties who are aggrieved by decision?

Why does it need (Inaudible)?

David S. Barr:

Well, because all of these other statutes do not have the Norris-La Guardia flavor and background that Section — that the enactment of Section 10 had each statute has to be looked at in light of its own particular purposes as this Court has stated.

Byron R. White:

Do you deny that the — that Sears is a party.

Byron R. White:

The party of some kind, was it not?

David S. Barr:

It was not a party in the 10 (l) litigation.

I deny that it was a party in the 10 (l) litigation.

Byron R. White:

But it was permitted to appear?

David S. Barr:

It was permitted to appear.

Yes, it was permitted to appear and present relevant testimony.

Byron R. White:

And then cross-examined?

David S. Barr:

We would suppose that they’d have right to cross-examine.

I think that’s implied in the grant stated by the language.

Warren E. Burger:

Well, they do habitually, as a matter of practice, don’t they?

David S. Barr:

Pardon me?

Warren E. Burger:

They are allowed to do it as a matter of practice consistently?

David S. Barr:

They are allowed.

They are — well, I don’t know if the word consistently is correct.

I think that usually, their role in 10 (l) litigation is very limited as it was in this case.

Byron R. White:

Say the Board is —

David S. Barr:

In this case, they didn’t engage in cross-examination.

Byron R. White:

Say the Regional Director appealed in this case, would the charging party be permitted to intervene?

David S. Barr:

No.

Byron R. White:

Would the — would that already be the party?

David S. Barr:

No.

Byron R. White:

Is there a (Inaudible)?

David S. Barr:

Yes all the cases that rule on that issue have said it cannot intervene, every single case that has ruled in itself.

Byron R. White:

Just as the 53 cases here?

David S. Barr:

I think it’s perfectly consistent with the cases here.

Absolutely, and in fact, some of those very cases which have denied the right to intervene under Section 10 (l) have recognized the force of Schofield but have distinguished it.

And they’ve distinguished it on very valid grounds as we pointed out in our brief and as they pointed out in their decisions as Professor Moore distinguishes Schofield when it comes to Section 10 (l) litigation.

As the Ninth Circuit in Henderson distinguished Schofield when it comes to 10 (l) litigation.

Byron R. White:

With respect which is the discretionary of the Section?

David S. Barr:

The holding that I’m familiar with has denied the right of a charging party and that Reynolds versus Marlene Industries, the union charging party in the 10 (j) was denied the right to intervene in that case.

Potter Stewart:

He had a right to support the position.

David S. Barr:

I believe he does and I believe he should.

Potter Stewart:

Under the — I’m just looking at it in the appendix, in 10 (l) as you well know it’s spelled out at least, part of it is spelled out that the charging party shall be given an opportunity to appear by counsel and present any relevant testimony as in the text of 10 (l).

It does not seem to be an equivalent provision or sentence in 10 (j).

David S. Barr:

Yes, and I really have no explanation for that.

It might have been an oversight.

It might have been an oversight in the process of legislating, I believe frankly that Section 10 (j) sort of came along after everything else and I don’t think they were as careful with the language of Section 10 (j) as they were with the language of Section 10 (l).

As I say, the law is not been completely developed under Section 10 (j).

The only case I know of is this Reynolds versus Marlene Industry where they denied the right to intervene in a 10 (j) proceeding.

Potter Stewart:

10 (j) is not very often utilized, is it?

David S. Barr:

It’s utilized very rarely.

We’d like to see it utilized more often but unfortunately it’s not.

I want to, before sitting down, make one comment about mootness.

The counsel for Sears argued that this case ought not to be dismissed as moot because under the Southern Pacific Terminal line of decisions, this Court has held that a case ought not to be dismissed as moot where it otherwise — where otherwise the issue could never reach this Court.

There are two answers that we’d like to present to this.

First of all, it is very possible for this same issue to appear before this Court in the proper case because many Board cases are very lengthy.

Many Board cases go over two years whether they — whether it’s because the issue is complicated or because in a 10 (k) case, for example, you might have two or three weeks of hearings.

The fact remains that there are many very lengthy Board decisions, Board cases and therefore, it is very possible for this issue to come here in a proper case at a later time.

Second —

Byron R. White:

The Board order isn’t final yet, is it?

David S. Barr:

The Board is final, Mr. Justice White.

It was issue on January — on June 20th.

Byron R. White:

Was that appealed?

David S. Barr:

It was appealed.

Byron R. White:

Does that appeal mean to oppose?

David S. Barr:

It was appealed only because it was final by the way.

Under Section 10 (f), it could not have been appealed if it were not final.

Byron R. White:

Was it in effect?

And what you have referred to reverse?

David S. Barr:

The decision is in effect.

Byron R. White:

What if the Court of Appeals reverses the Board?

David S. Barr:

If the Court of Appeals reverses the Board, well that ends —

Byron R. White:

Very final in that sense.

David S. Barr:

Well, it’s final — it’s a final adjudication of the Board.

It’s a final — it’s not a final adjudication of the case.

But the language of Section 10 (l) is final adjudication of the Board not final adjudication of the case.

Potter Stewart:

Is it an appeal or is it a petition for enforcement of the Board’s adjudication?

David S. Barr:

It’s an appeal that we filed Mr. Justice Stewart for review, for review.

Potter Stewart:

For review.

David S. Barr:

For review.

Yes, Your Honor.

And the Board cross-applied for enforcement, so that both the petition for review and the cross application are before the District of Columbia Court of Appeals but I want to say that the second answer to the mootness argument is that that was not the issue in Southern Pacific Terminal.

Warren E. Burger:

Mr. Barr, your time including your additional three minutes is up unless you want to just finish that sentence.

David S. Barr:

I’ll just finish that sentence.

The issue in those cases was not whether the issue could come before this Court at some future time or not.

The issue was whether this Court ought to dismiss a case as moot when the effect of an order that was issued by agency or a Court still continued despite its technical expiration.

In other words, there were still an order that was even though technically expired was influencing and coercing the comment of the parties.

That’s not this case and this case is moot.

Thank you very much.

Warren E. Burger:

Thank you, Mr. Barr.

Mr. Smetana, you have the 11 minutes.

We’ll enlarge that a little if you need it.

But there’s no compulsion on your part to use it.

Gerard C. Smetana:

Thank you, Your Honor.

I should first like to point out in response to union counsel’s argument that unions also are beneficiaries under Section 10 (l).

They in a number of cases, in an 8 (e) situation where there’s a Hot Cargo case which the Ninth Circuit Retail Clerks case, it was the union who was the charging party and it was the union who was seeking to appeal and so that the unions in those situations as well an 8 (b) (4) (a) situation where the attempt to enforce of coercively enforce illegal 8 (d) contract and also in 8 (b) (4) (d), the construction industry jurisdictional cases, the union is the charging party.

Secondly, so far as the cases have decided the appellate review, the union counsel suggests that they have all given charging party only amicus status.

I would suggest, Your Honors that this is the first case where the issue has a reason where the — it involves a charging party which is an appellant.

And there is considerable difference because in the Retail Clerks case, although the charging party was relegated to amicus status, I’m glad that I have to refer the Court back to the appendix, to our reply brief on the — an opposition to the petition for cert.

That’s supplemental appendix A-43.

Gerard C. Smetana:

In that appendix, that appendix reflects the fact that the charging party which was only granted amicus status however presented oral argument and presented briefs and in fact, in the context of the case where the only ones to present that position.

Conversely, in our situation if we are not granted party status, we will be precluded from appealing from the denial of injunctive relief.

And if the Board’s argument on control is to hold, I would submit the Board’s argument control, on control is wholly without reason primarily because the Board is suggesting that it could be in the position of on the one hand having found reasonable cause what was mandatorily required to proceed with the Act.

On the other hand, still maintaining their reasonable cause, still going forth with the underlying case but suddenly deciding that for some reason, there might be something that in appealing the 10 (l) situation might interfere with its ultimate victory in the underlying case.

I would submit that if that is the — if that is their fear, fine!

Let the chips fall where they will and then the Board perhaps will have to pull out of the underlying case.

But so long as they maintain reasonable cause, so long as they don’t their mind about the underlying case, I don’t know whether they have a mandatory obligation to go forward but certainly, they have — they cannot take the position that they must have control.

They have the control.

They can change their mind on reasonable cause that is the only kind of control.

And I would submit in analyzing the question of control, we must look to the kind of control the Board has urged even in the court below.

The Board — the Board would say as the Tenth Circuit has said, the language of 10 (l) means that and no more but conversely, again looking at the scheme of the Act, the Board in charging, in charge cases, the charging party has many rights that interfere with the Board’s control.

The Board for example cannot withdraw its complaint in the Board case once having gone to hearing without giving the charging party rights.

The Board cannot settle the Board case once having gone to complaint without the charging party being heard.

I think these are the kind and I’m saying that that scheme of the Act is also transposed to the language of being heard being the fact that it’s the same charging party.

I would further argue the answer to the Norris-La Guardia argument.

Mr. Manoli gave us a number of quotes both on argument and from his brief with respect to the fears.

Well, the persons who are enunciating the fears at that time, they were enunciating the fears that the passage of Taft-Hartley would return us to Norris-La Guardia and the very fear that they were concerned about was the fear that anyone be at the Board or private parties would seek injunctive relief before the merits were decided and I would submit that the Congress acted very wisely in giving the — in entrusting the Board with their responsibility of seeking that relief.

Because as we have pointed out in our reply brief on page 9, footnote 6 — footnote 3, pardon me, the Board’s record is excellent taking 1967 as a typical year and the only reason we took 1967 was because we wanted to see what happened to all those 10 (l) cases where the Board went to final order.

There was 69 cases in that year.

There were many other 10 (l) they had issued on 165 and they were almost 1500, 1800 charges under these sections.

But the significant fact is that in those cases where they went to final order where injunctive relief was either granted or denied, and the ultimate Board litigation only one case was their cause to find that the Regional Director’s original cause, original basis for reasonable cause was an error.

So, I would submit that the Board is wise that the persons, the charged party has not generally been disadvantaged in terms of the Regional Director not being sustained in his finding of reasonable cause.

And I would — I submit, the finding of reasonable cause is the central issue and so long as the Regional Director maintains that reasonable cause, he cannot say that he does not have control because that is the element of control.

Simply so far as the Henderson case which counsels of both side, and I would say is not very convincing.

The Ninth Circuit in the Retail Clerks case went to a great length to try to analyze the question.

The Henderson case was simply a summary discussion and really only addressed itself to the question of amicus or intervention status at the appellate level and that is inconsistent, first of all with the Retail Clerks case with respect to that question.

And I would submit that there is however a more fundamental question when we are appellants.

Because in order to appeal, we must be considered a party and as I have said, a party minus the right to seek, a party minus the right to urge other positions not consistent with the original position and perhaps as Moore suggest, perhaps there is some third animal in the law which could come out in this case.

Something less — something less than a full party because we can’t do all those other things but yet someone having the rights of a party and someone who has — where the rights of the amicus are not sufficient as the Court has said in Schofield.

Thank you.

Warren E. Burger:

Thank you.

You have not used your three minutes.

But thank you.

Case is submitted.