William E. Arnold Company v. Carpenters District Council of Jacksonville and Vicinity – Oral Argument – March 20, 1974

Media for William E. Arnold Company v. Carpenters District Council of Jacksonville and Vicinity

Audio Transcription for Opinion Announcement – May 20, 1974 in William E. Arnold Company v. Carpenters District Council of Jacksonville and Vicinity

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Warren E. Burger:

We’ll hear arguments next in 73-466, Arnold against the Carpenters District Council.

Mr. Jones, you may proceed when you’re ready.

John Paul Jones:

Mr. Chief Justice and may it please the Court.

The case before you is a case involving a state court’s jurisdiction to enjoin the violation of a no-strike promise by a union.

The petitioner in this case is a general contractor and for purposes of clarity and keeping the party straight, I’ll refer it to the William E. Arnold Company petitioner in this case as Company.

The Company and the union had an agreement, which provided that there would be no strikes over a jurisdictional dispute.

The general contractor, the Company’s subcontractor who had a contract with another union pursuant to that agreement assigned certain work to this other union.

The respondents here, the union, then struck in violation of the no-strike clause, which also provided that the grievance arbitration procedure of the National Joint Board would obtain in any disputes over jurisdictional dispute.

The company then filed an action in the state court for a temporary restraining order, which was granted after a notice to the union’s attorney and after the preemption doctrines had been argued before the state judge.

A temporary restraining order was issued enjoining the union from further breach of the collective bargaining agreement.

The union then filed a suggestion for writ of prohibition in the First District Court of Appeal and state —

William J. Brennan, Jr.:

That was (Inaudible)

John Paul Jones:

Pardon sir?

William J. Brennan, Jr.:

That was a 301 suit in state case, was it?

John Paul Jones:

Yes, Mr. Justice Brennan it was.

It was not denominated as such in the pleadings, but it was in 301.

The suggestion for writ of prohibition was filed in the First District on the basis that the Garmon doctrine as it had been enunciated by the Supreme Court of Florida in both the Sheet Metal and the Florida Heat and Power cases preempted the state court from taking jurisdiction in any labor dispute regardless of whether or not it was a contract violation, if the conduct involved was either arguably protected or arguably prohibited under the National Labor Relations Act.

The District Court rejected this argument, affirmed the jurisdiction of the state court.

The union then filed — filed a petition for writ of certiorari with the Supreme Court of Florida, which was granted and the Florida Supreme Court reversed the District Court in a five to two decision, relying on its previous holdings in the Scherer and Sons case and in Florida Heat and Power.

In both of those cases, the Florida Supreme Court had enunciated this Court’s doctrine of Garmon.

We filed a — the Company filed a petition for rehearing which was denied and we are here today on writ of certiorari to the Florida Supreme Court.

Our petition for writ of certiorari was filed because as we contend in our brief and in the petition for writ of certiorari, the decision of the Supreme Court of Florida applies in the face of Smith v. Evening News and Lincoln Mills and Dowd Box.

We submit that the simple question in this case is whether or not a state court is preempted from enjoining the breach of a no-strike promise in a collective bargaining agreement simply because the conduct which is involved in the breach is also an arguable or admitted unfair labor practice.

In this case, we concede that the conduct of the union in striking over jurisdictional dispute was a violation of Section 8 (b) (4) (D) of the Act.

So it was concededly an unfair labor practice.

We submit that the simple question can be answered by reviewing this Court’s holding in Smith v. Evening News and Carey v. Westinghouse.

We submit that if the state court has jurisdiction to entertain an action for breach of a collective bargaining agreement for damages or to compel arbitration as was the case in Carey v. Westinghouse, which also involved a jurisdictional dispute or a representation question depending on how you look at the case, then all the more so, the state court should have jurisdiction to enjoin the breach of a no-strike clause because this promotes the free flow of commerce, which is so basic in the purposes of the Act and it merely reduces an industrial strife by requiring the party who committed the breach to be bound by the promise they made in that agreement and to settle this dispute in a peaceful manner.

We submit that the only distinction that can be had between the Smith case and the Carey case and the case before you is that this case involved an injunction to enjoin the further breach of a no-strike promise.

And we submit further that the Florida Supreme Court’s reliance on the Garmon doctrine is erroneous in that there is a major distinguishing factor between Garmon and the instant case.

In Garmon, we were not concerned with a contractual relationship between the parties and in both of the cases relied upon by the Supreme Court of Florida, the Scherer and Sons case, and the Florida Heat and Power, we admit that the result was right but the reasoning was wrong because a reason that any activity arguably prohibited or protected is preempted with — in a broad spectrum and not taking into account the fact that there maybe a contractual relationship between the parties.

John Paul Jones:

Now, in neither of those cases Scherer and Sons nor in Florida Heat and Power was there a contractual relationship between the parties.

It did not involve a contract breach.

It involved activity which should have gone to the National Labor Relations Board because it was activity prohibited under Section 8 of the Act.

We submit therefore that under the prevailing labor law, the state courts are not preempted in circumstances such as the instant case and that the Supreme Court of Florida should be reversed.

We turn next to what we believe is the larger question in this case and that is the role of state court in the adjudication of disputes over breaches of collective bargaining agreements and the uniformity of National Labor Policy in both among the states and the relief that’s available for breaches of no-strike clauses or other contractual promises as between the state and the federal courts.

We respectfully submit that this court’s opinion in this case can lay down guidelines for the state courts to be guided in their jurisdiction as to the adjudication of breaches of collective bargaining agreements and that this will go a long way in achieving uniformity of the result between both state and federal forums.

William H. Rehnquist:

Mr. Jones, is that really before us?

My understanding is that the Supreme Court of Florida issued a writ of prohibition saying that whatever standards might apply to the Florida state courts in enforcing a 301 action if they had jurisdiction, they were simply preempted by the National Act and they didn’t pass and the District Court of Appeal didn’t pass on what standards would guide them if they had the right to entertain this suit?

John Paul Jones:

Well, Mr. Justice Rehnquist, what we would submit is that this question so far as we can tell is one for the first time for this Court to decide as far as the jurisdiction of the state court to enjoin the breach of a no-strike promise by way of injunction.

And as was pointed out in the footnote in Dowd Box that question was not before the court whether or not Norris-La Guardia applied to the state so as to preclude their issuance of an injunction.

I believe that question was answered in Mr. Justice Brennan’s opinion in Boys Markets where in that opinion, you adopted the reasoning of Justice Traynor in the McCarroll case that in that regard, Norris-La Guardia, although Congress could have precluded the states from jurisdiction to issue injunctions, they did not do so, that Norris-La Guardia applies only to the federal courts.

Now, we submit that the question is before the Court in terms that we’re here to decide whether or not a state court has jurisdiction to enjoin the breach of a collective bargaining agreement and in that context, then the opinion in this Court will decide for the first time, “Do state courts have jurisdiction to enjoin a no-strike promise by injunction?”

And we submit that they do, that it would be consistent with the – this Court’s prior holdings, it would be consistent with the objective of the National Labor Relations Act to achieve a uniform policy and to promote industrial peace rather than industrial strife.

We — I think that the parties here agree, both the respondent and the amicus the National Chamber that there should be a uniform policy throughout the country.

William J. Brennan, Jr.:

But would this be met do you think that simply by holding applicable or pertinent federal law as to govern the state court determination?

John Paul Jones:

Yes, Mr. Justice Brennan.

I would submit that this question could be answered in a holding by this Court that state courts have jurisdiction to enjoin no-strike breaches by injunction and that the equitable relief —

William J. Brennan, Jr.:

Well that is the federal law?

John Paul Jones:

Yes, in the Boys Market —

William J. Brennan, Jr.:

The federal law would produce that result and the state courts may apply federal laws as I understand?

John Paul Jones:

That’s correct Mr. Justice Brennan I believe it —

Potter Stewart:

[Voice Overlap] must, isn’t that?

John Paul Jones:

I’m sorry?

Potter Stewart:

The state courts not only may apply federal law, but they must do so?

John Paul Jones:

Under Lincoln Mills, they must, yes sir and we submit that for clarity and for uniformity of National Labor Policy that that’s what this decision should mean that state courts are bound by federal law.

The law is unclear at this point because the question was left open in Boys Markets opinion as Mr. Justice Brennan, you are well aware.

But we would submit that under Boys Markets, it answered the question for whether or not federal courts could issue an injunction in a labor dispute, not withstanding Norris-La Guardia restrictions.

We submit though that Boys Markets has left open certain questions and placed certain restrictions upon the parties in their free collective bargaining process.

We submit that the holding in this case should be that a modified Boys Markets’ holding would apply to both state and federal courts in their entertaining any suit to enjoin the breach of a no-strike promise and that we submit further that no-strike promises are generally enforceable in either state or federal courts.

We would turn now to several of the items in Boys Markets, which we consider were left open and would like to advance argument to the Court on.

John Paul Jones:

In Boys Markets, one of the conditions precedent, which Mr. Justice Brennan outlined in that opinion which was the adoption of course of the dissenting opinion in Sinclair, was that as a condition precedent, the subject matter of the dispute had to be subject to a final binding agreements and arbitration clause.

We submit that a no-strike promise in a collective bargaining agreement should be enforced in either state or federal court notwithstanding whether the underlying grievance is subject to a binding grievance and arbitration clause or not.

Now, to do otherwise, we submit, dictates the terms of a collective bargaining agreement, which goes against this Court’s decisions in American National Insurance Company in 1952 and then the HK Porter case.

The reason we say that is this.

When the parties sit down at the bargaining table and negotiate, there are a lot of factors that play at that table when they meet and discuss the terms of a collective bargaining agreement.

The employer may well be willing to pay more in terms of wages and fringes to the members of the bargaining union.

If he gets in return therefore a specific exclusion from the arbitration clause of some management decision, for example in subcontracting, the matter that was involved in Steelworkers Trilogy and Warrior and Gulf.

Now, we submit that the party should be left free to negotiate their own terms of the agreement.

In Warrior and Gulf, Mr. Justice Douglas recognized that the parties could have specifically excluded from arbitration that matter of whether or not they had the right unqualifiedly to subcontract the work and that it would not be subject to the grievance and arbitration procedure.

We note that in the Gateway decision, Mr. Justice Powell noted that the parties could, if they chose, negotiate a broad grievance and arbitration clause and yet specifically by terms in the agreement negate any no-strike promise.

We submit that if the parties can do that, then albeit they can exclude a narrow area from arbitration.

And that to do so, and to still have the no-strike promise enforceable even though the subject matter of dispute maybe within that narrow confine that’s not subject to arbitration promotes the policies of the Act rather than to do them violence because the underlying purpose of the Act of course is to promote industrial peace and harmony and to reduce interruptions of work through strikes and work stoppages.

The whole underlying purpose of the Taft-Hartley Amendment was to equalize the bargaining positions and the enforceability of collective bargaining agreements as between employers and unions because at that point, employers had little incentive to enter into collective bargaining agreements, if they could not have them enforced, and therefore, came the Section 301 jurisdiction which it seems clear takes into its sphere not only legal relief, but equitable relief.

The legislative history of that seems somewhat clear.

We submit that the rule as to enforcement of no-strike promises should follow along the lines of a doctrine enunciated by Mr. Justice Douglas in Warrior and Gulf.

And in that case, the arguably arbitrable doctrine was established that anything that was arguably arbitrable would be deemed to be subject to the arbitration clause of the contract.

We submit that no-strike promises should be arguably enjoinable and that if the union promises for the duration of the contract not to strike —

William J. Brennan, Jr.:

This is a jurisdictional dispute in this case, isn’t it?

John Paul Jones:

Yes, Mr. Justice Brennan.

William J. Brennan, Jr.:

And is it — let’s see, I have forgotten, it is an arbitration provision?

John Paul Jones:

Yes, sir.

William J. Brennan, Jr.:

So this is mandatorily mis —

John Paul Jones:

Yes, Mr. Brennan.

William J. Brennan, Jr.:

An arbitration procedure — mandatory arbitration procedure?

John Paul Jones:

Yes, Mr. Justice Brennan.

William J. Brennan, Jr.:

So we’re not — we don’t have in this case at least the situation you’re addressing now, do we — of simply a no-strike clause without an arbitration provision?

John Paul Jones:

That’s correct, Mr. Justice Brennan.

William J. Brennan, Jr.:

But you nevertheless are asking us to decide that?

John Paul Jones:

I’m asking this Court to look at that question in terms of the fact that the Boys Markets decision has left open whether or not it applies to state —

William J. Brennan, Jr.:

Well, I guess somebody left it open rather purposely I thought in Boys Market?

John Paul Jones:

To —

William J. Brennan, Jr.:

We limited — we said that the Boys Market decision dealt narrowly with the question of enjoinability of a strike in the situation where there was an arbitration provision for handling the grievance, which provoked the strike?

John Paul Jones:

That’s correct, but in Boys —

William J. Brennan, Jr.:

(Voice Overlap) to go beyond that.

John Paul Jones:

Yes, sir but in adopting the Boys Markets decision of course, it was the dissenting opinion from Sinclair —

William J. Brennan, Jr.:

That’s right.

John Paul Jones:

— which setup these — these conditions precedent to invoking the arbitration, to invoking the court’s jurisdiction to enjoin the breach of a no-strike promise.

William J. Brennan, Jr.:

But one of those conditions, was it not, was that they determine whether or not it was an arbitrable grievance.

Was that in the Sinclair dissent?

John Paul Jones:

Was one of the conditions.

William J. Brennan, Jr.:

Yes.

John Paul Jones:

In the Sinclair dissent, that was listed and adopted I think just verbatim as this Court’s holding in Boys Markets was that one that had to be — the dispute had to be subject to the grievance and arbitration.

William J. Brennan, Jr.:

It had to be over a grievance, which both parties are contractually bound to arbitrate?

John Paul Jones:

Yes sir and also that in the court’s order, it should order the employer to arbitrate that.

Now, we would submit that the order should run both ways.

It should order both parties and I believe that in the Boys Markets case that that was the case.

The District Court did order both parties to submit to arbitration.

We’re simply Mr. Justice Brennan pointing out that in the Boys Markets’ decision, the loopholes that were left there we’re pointing on here will provide an opportunity unless state courts are granted through this decision broad jurisdiction to enjoin those strike promises, that were going to be faced with the situation where —

William J. Brennan, Jr.:

Well, but it may be that the whole underlying premise of Boys Markets was that you may enjoin violation of a no-strike provision only if there is a compulsory arbitration provision applicable to the grievance which provokes the strike.

John Paul Jones:

Yes, sir and that Mr. Justice Brennan is our point in that if that is declared holding in Boys Markets then through that decision, we are dictating the substance of terms of a collective bargaining agreement because if an employer knows that in order to have a no-strike promise enforced, he has to have everything subject to the grievance and arbitration clause —

William J. Brennan, Jr.:

Yes.

John Paul Jones:

— then we’re telling the employer you must agree if you want your no-strike promise which you paid dearly to get to have peace for a year or two years or three years, you must agree to a broad grievance arbitration clause that covers everything.

Then we are dictating to that employer the terms of — a substantive of term of that collective bargaining agreement.

We submit that if that is the holding, then we are placing restrictions on the employer that are not contemplated nor desired by the Act which promotes and encourages free collective bargaining between the parties and leaves the parties at the door of the bargaining realm.

And that depends then on the relative strength of the parties and the skill of the negotiators and how much each party is willing to pay to get an agreement.

We submit that there are several areas that are left open in Boys Markets, several loopholes.

For instance, if the union wants to say we’re going to strike but we don’t — we’re not going to tell you what we’re striking about if they’re dissatisfied with their union representation, Collyer can strike.

Under Boys Markets that would not be subject to the grievance arbitration clause.

We submit that the instant case presents a perfect opportunity of demonstrating what will happen unless there’s uniformity of decision among the states and that the thrust of the Florida Supreme Court’s decision is that the employer can sit and negotiate the terms of a bargaining agreement, extract a promise from the union through give and take process.

And yet if that process is not enforceable in a state court, then for all intents and purposes, the employer has been undermined in his bargaining attempt.

John Paul Jones:

And we would point out too that unless the — unless the rule is the same as to state and federal courts that one, if state courts have broader jurisdiction to grant greater relief from the federal courts, we’ll get into a situation of pre Boys Markets where its removed under the F code because if they can narrow their relief, they’re removed from the federal court.

And if this is the case or if the state courts do not have jurisdiction to enjoin breaches of no-strike promises, then we are going to add greatly to the workload of the federal court system.

And in that regard, I would point out that in our jurisdiction in Jacksonville, we have 20 general jurisdiction state courts that are available to apply for a temporary restraining order.

We have two already over docketed federal district judges.

And —

Warren E. Burger:

Mr. Farley in his brief tells us that there’s no binding arbitration clause here. I suppose you’d be willing or are you willing to submit the case turns on that?

John Paul Jones:

Well, Mr. Chief Justice, we don’t believe that the case turns on that.

We would submit that there is a binding arbitration clause when the whole contract is read which is in the appendix, beginning at page 820.

We submit that the parties have agreed to abide by the terms for settlement of jurisdictional disputes under the joint board and that that incorporates by reference that document which would set up the final binding provisions of the agreement.

Warren E. Burger:

Well if he is right in his position that there’s no binding arbitration agreement then what happens to your case?

John Paul Jones:

If there is no final and binding arbitration?

We would submit that the state court still has jurisdiction to enjoin the no-strike promise because the union agreed there shall be no work stoppages because of jurisdictional disputes.

Now, in this context —

William H. Rehnquist:

Mr. Jones, wouldn’t you contend that once you get to the end of the preemption issue that if there is no preemption here, the state court has jurisdiction to decide as the Chief Justice says whether there was a binding no-strike clause of binding arbitration clause and decide whether that is required by the law?

I mean, all — what you’re appealing from is the decision of your highest state supreme court that said the circuit court of Duval County can’t even entertain an action like this, not how to decide it on the merits once it’s entertained?

John Paul Jones:

That’s correct Mr. Justice Rehnquist.

They decided that they had no jurisdiction in the first place ab initio because of the Garmon Doctrine, which is what they incorporated in their two decisions on which they relied.

And we submit that that is erroneous reasoning and erroneous result that the state court is not preempted, that the state court has jurisdiction, that the case is the Smith case except in this case there was an injunction issue.

And this is where we submit is a broader question in this case which should be examined along with Boys Markets that there ought to be uniformity both among the states and between state and federal courts.

William H. Rehnquist:

But if the circuit court has jurisdiction, if it isn’t preempted by Garmon, then I take it that it has a right to issue an injunction erroneously under Boys Market as well to issue an injunction correctly under Boys Market.

There was an intonation in the District Court of Appeal decision that maybe the Judge writing the opinion for the District Court of Appeal thought that the circuit court had made the wrong decision, but that that didn’t deprive them of jurisdiction?

John Paul Jones:

Well, that’s correct and I think that the District Court of Appeal made some mention about the application of Boys Market and the state of whether or not it’s free of error because he did not issue also an order for the employer to arbitrate.

Warren E. Burger:

Mr. Farley.

Joseph S. Farley, Jr.:

Mr. Chief Justice and may it please the Court.

I am in complete agreement with Mr. Jones as to we all would like to have uniformity in the Federal Labor Law.

The problem that this case presents is that you have two relatively well gone over doctrines in the Federal Labor Law that are presented in this case.

The first is the doctrine of federal preemption over unfair labor practices.

The Garmon doctrine, Garner, Weber decisions saying that if a case presents a dispute that is arguably an unfair labor practice or a protected activity under the Act that the Federal Government has preempted the area and that state courts should defer to the federal jurisdiction.

Then in this particular case, you also have the question of the Norris-La Guardia Act and the prohibition on federal courts of issuing injunctions in labor disputes.

The Florida Supreme Court held essentially that the fact that a contract is involved does not remove the prohibitions of preemption that the Federal Government has placed upon the states.

Joseph S. Farley, Jr.:

That this area of the law, the injunction in a labor law dispute is sufficiently of national concern and national interest that the state courts should defer at least initial jurisdiction to the National Labor Relations Board when injunctive relief is what is requested and when it is concededly an unfair labor practice involved.

Our position is simply that if state courts would follow this position, you would have your uniformity in your federal labor law.

There’s nothing to prevent the company if they feel — if they feel as though a no-strike provision has been breached from going into federal court.

There’s nothing to prevent the company if they feel an unfair labor practices being practiced upon them to go to the National Labor Relations Board and there’s nothing in the world preventing the National Labor Relations Board from doing something about it.

That’s the whole purpose for which they were setup.

They have the machinery to acquire injunctions.

They have the machinery to issue cease and desist orders against activities like this.

This area of the law has long been within the federal curtilage and jurisdiction, although it might also have been somewhat within the state jurisdiction.

The states haven’t known what to do because the federal law is always changing with the times to keep up with the situations that arise in labor disputes.

And our position —

Warren E. Burger:

If the state court, Mr. Farley, if the state court is required to enforce the federal law, is it necessary to defer to their jurisdiction in order to accomplish that result?

Joseph S. Farley, Jr.:

No, Your Honor, but I would point that this Court has held long before now that state court is entertaining 301 suits are bound by federal law.

But I think its fairly clear that doesn’t happen all the time when you got 50 states with numerous lower level trial courts coming in and accepting jurisdiction and —

Warren E. Burger:

Well this would have to be a general jurisdiction court in the state, would it not?

Joseph S. Farley, Jr.:

Yes, sir.

Warren E. Burger:

That’s not very low level, is it?

A general jurisdiction court?

Joseph S. Farley, Jr.:

Well, I don’t know, there’s 20 in Jacksonville–

Warren E. Burger:

Twenty Judges.

Joseph S. Farley, Jr.:

Yes, sir.

Presumably and hopefully, each one with roughly the same opinion, but again as it turns out —

Warren E. Burger:

Well, there’s nothing unique about that, you have 27 trial judges in New York City in the federal court.

Joseph S. Farley, Jr.:

Yes, sir.

Warren E. Burger:

And probably I don’t know, 50 or 75 state court judges.

What is the — how does the number enter into it?

Joseph S. Farley, Jr.:

Just in the reasoning behind Garmon with so many different —

Warren E. Burger:

Isn’t your emphasis really they aren’t just familiar with the federal law as the district — Federal District Judges at least presumed to be?

Joseph S. Farley, Jr.:

Exactly Your Honor, exactly and I don’t think that there’s any question but this is the case.

And I think that its just with the federal machinery that is setup particularly with the National Labor Relations Board with this Court’s holding in Boys Market making it obvious how important the injunction is in federal labor law that you should allow all the trial courts in the different states to try and interpret the law.

That because the labor injunction is of national concern, that outweighs the consideration that a contract was also involved and is sufficient reason to employ the Garmon doctrine of federal preemption.

Joseph S. Farley, Jr.:

Especially in this case where there is concededly an unfair labor practice involved.

Especially in this case where at least in my opinion there is not a binding arbitration clause.

There’s no provision whatsoever for arbitration and I’m not sure that there is actually an agreement as to what is going to be binding upon the parties and of course then you have a problem with the labor union, it wasn’t even a part of this contract.

The record unfortunately is silent as to what procedures were taken by either the union involved here, the Carpenters union or the company to attempt to follow the grievance procedure that was somewhat set out in the contract.

There was no transcript made of the hearing and it’s unclear whether the Lathers’ union was unwilling to follow this procedure, whether the company was unwilling to —

William H. Rehnquist:

Of course what you’re defending here is the decision of your Supreme Court that says the Circuit Court in Jacksonville can’t even inquire into these issues, that they simply have no jurisdiction to look into the things that you’re talking about?

Joseph S. Farley, Jr.:

Yes, Your Honor.

But my position is that the Florida Supreme Court held exactly foursquare with Weber and with Garmon.

And in attempting to keep the law uniform, the federal labor law uniform, they followed what the United States Supreme Court said in those cases.

They followed it very strictly that if arguably you have the unfair labor practice then the state court should defer jurisdiction.

William H. Rehnquist:

But then the kind of facts that you are just mentioning whether the Lathers did this or did that really don’t bear on the jurisdiction with, do they?

Joseph S. Farley, Jr.:

Only to the extent that you also have the question of the contractual agreement and if you get into Boys Market, the area of injunctive relief which this Court with this case did present to the Florida Supreme Court.

They had been concerned in prior cases with the issuing of ex parte injunctions in labor disputes.

It becomes important as to what went on because of Boys Market saying that there must be — for the federal courts anyway to enjoin an activity, there must be the binding arbitration procedure.

William H. Rehnquist:

Well but supposing that that is the rule of Boys Market and supposing you’re wrong on your Garmon point that the Circuit Court in Duval County has jurisdiction to entertain this action, but it must follow Boys Market and that’s the rule of Boys Market.

The fact that it may have wrongly issued an injunction in this particular case wouldn’t support what the Supreme Court of Florida did here because they said it had no business even inquiring into this subject?

Joseph S. Farley, Jr.:

Yes, Your Honor.

I wasn’t trying to imply that it would.

I understand that if the court — if the state court had jurisdiction of this matter, it doesn’t make it.

That’s the question that we have here.

Not whether it wrongfully or rightfully enjoined if it had jurisdiction, but rather does it have jurisdiction.

I believe it was the Attorney General that brought in their memorandum to the Court, brought up the question of abstention of state courts.

I don’t really see a big distinction between the Florida Supreme Court saying we are going to abstain — we are going to defer our jurisdiction.

Warren E. Burger:

They didn’t say deferring that, did they?

Joseph S. Farley, Jr.:

Well, they — not in this case.

They didn’t say they were deferring.

Warren E. Burger:

So deferring, have any?

Joseph S. Farley, Jr.:

Right.

Warren E. Burger:

So there is no jurisdiction at all?

Joseph S. Farley, Jr.:

Well, but the way they phrased it in the prior case, I believe it was Sheet Metal, but it might have been Scherer that state court — that the state court should defer initial jurisdiction — should defer jurisdiction at least to the point of letting the National Labor Relations Board make the initial decision as to federal jurisdiction.

Joseph S. Farley, Jr.:

It maybe that the Florida Supreme Court was taking a position of deferring in and abstaining to the National Labor Relations Board.

That was — my reading of their opinion was that they would be happy to take jurisdiction of the case if the National Labor Relations Board did not feel it came within the federal preemption doctrine or it came under the National Labor Relations Board jurisdiction.

They didn’t say flat out we’re not going to take jurisdiction of cases that arguably come under the Taft-Hartley Act.

They just said initially, they would prefer in the interest of uniformity to have the National Labor Relations Board make a decision.

Warren E. Burger:

First to mind which in, if I am reading the correct opinion, Judge McCain — Justice McCain is the court’s opinion, isn’t it?

The bottom paragraph is, “We hold that the District Court erred in failing to prohibit the further exercise of jurisdiction by the circuit court.”

That does have some overtones of what you suggested perhaps, but further exercise —

Joseph S. Farley, Jr.:

That I tried to point out in my brief that regardless of the dictum that the Florida Supreme Court threw out that the case that they decided was a case for injunctive relief that on the face of the complaint alleged in an unfair labor practice.

And that they decided that in that situation where there’s no binding arbitration clause at least the way I read it, that the state court should not utilize its jurisdiction, it should defer jurisdiction.

And again to repeat, it seems to me that the best way to ensure national uniformity in our federal labor law and relations and especially in the area of unfair labor practices and injunctive relief is to allow the state courts to defer to the federal courts or the National Labor Relations Board.

Congress has set out what the unfair labor practices are.

Congress determined that a national agency should oversee and should try and curtail and prevent these unfair labor practices.

This Court has been very definitive in — under what situations the district courts could grant injunctive relief.

It seems to me that if the injunction is of such interest to Congress and to the federal labor law that they would pass a law, the Norris-La Guardia Act, prohibiting the district courts from granting injunctive relief, then that I think is a national policy that represents the national policy of being very careful under what situations you grant injunctive relief.

Now, I don’t see any sense at all in having one layer of law, one pathway of law being the federal law saying only under these circumstances can injunctive relief be granted in the federal court, but under any all circumstances, they can be granted in the state courts.

That’s just not in the interest of the national uniform labor policy.

William H. Rehnquist:

Of course — what do you do about the limitation and the language of the law in Norris-La Guardia Act that says it applies to courts of the United States and certainly intimates it doesn’t apply to state courts?

Joseph S. Farley, Jr.:

Well, I don’t know that this is a case where this Court could extend the language of the Norris-La Guardia Act to state courts.

I will point out though that in Boys Market, this Court noted that a good number of the states already have anti injunction statute so that you got sort of a hodgepodge anyway with the state courts.

What I am saying is that to allow state courts, as this one did, to defer to the federal jurisdiction would be better than allowing 50 states to go in 50 different ways on federal injunction labor law.

I don’t know — on the face of it, your contractual question; there is a conflict between the Florida Supreme Court’s decision and the decision in Smith v. Evening News.

But to say that it is such a conflict that we’re going to just throw out to all the 50 states the question of federal injunctive relief and let them decide at it as they may, I think that the latter is more important and that the contractual question should yield to the federal preemption doctrine in this situation.

Thank you.

Warren E. Burger:

Thank you Mr. Farley.

Do you have anything further Mr. Jones?

John Paul Jones:

Mr. Chief Justice and may it please the Court, just one or two closing points.

My adversary has pointed out that in regard to the National Labor Relations Board that they could well take cognizance of the matter and grant relief.

We would point out; one, they do not have the power to issue cease and desist orders.

They must be enforced through a circuit court if it’s an order of the board or also under Section 10 (k), they are required by statute to defer to a voluntary method if it’s outlined in the agreement.

We would point out as Mr. Justice Douglas pointed out in Lockridge dissent that the machinery of the Board is one of the slowest grinding processes that one could experience and someone would be out of business by the time they invoke those procedures.

John Paul Jones:

The NLRB has held in the VMC Brooklyn case, the Collyer case, and the Laborers case that they will defer to an arbitration process even when there may be a specific violation of an unfair labor practice.

We would point out also that in Carey, there were two unions involved and that it wasn’t clear of whether both of them were subject to the arbitration clause, but arbitration was ordered by the holding in this Court.

We submit that the question as to Norris-La Guardia and the application of the states was answered in the Boys Markets opinion in which Mr. Justice Brennan adopted Justice Traynor’s reasoning in the McCarroll case.

We would submit that by virtue of that, that question has been answered.

The states courts do then have jurisdiction to issue injunctions in labor disputes in contractual matters when you apply the reasoning of Smith v. Evening News.

And we would submit that the best effectuation of national labor policy, of freedom of collective bargaining, of the free flow of commerce and of deferral to the parties choice of the terms of that collective bargaining agreement that all of these things are best served by permitting the states to enjoin breaches of no-strike promises.

And that this will go a long way toward achieving uniformity among the states and between the state and federal systems.

That in — as was pointed out in Boys Market, damage action may lie for the breach of a no-strike promise, but a damage action is hardly compensation for the irreparable harm that occurs to an employer when a strike occurs and that the injunction is so important device in the enforcement of no-strike promises, that it should not be denied that in the maxim of “Justice delayed is justice denied” has no truer meaning than in this context.

When a strike occurs, irreparable damages begin to run and the employer is left with no forum.

He cannot go to the state court.

If he goes to the federal court, it’s a longer way or if he is required to go to the National Labor Relations Board which really can’t grant him no immediate relief anyway, then he is left without any remedy at all.

And even under the injunction procedures of the National Labor Relations Board in 8 (b) (4) (B) or 8 (b) (4) (D) situations, where under the statute, the Board is required to give them priority treatment.

Our practical experience has been that if you can get to the U.S. District Court within ten days, it’s a miracle.

And from that regard then we submit that the National Labor Relations Board is no forum to adjudicate this.

They do not have the power to do so and they do not have machinery and they’ve said themselves that they will defer to the parties.

We submit therefore that the basic question here that we face in determining the matter of whether or not state court should be allowed to enjoin no-strike promises is how can the purposes of the Act be frustrated or the employees rights be infringed if they are required to do what they promised to do in a collective bargaining agreement?

Warren E. Burger:

Thank you Mr. Jones.

Thank you Mr. Farley.

This case is submitted.