Youngdahl v. Rainfair, Inc.

PETITIONER:Youngdahl
RESPONDENT:Rainfair, Inc.
LOCATION:Shotwell Manufacturing Co.

DOCKET NO.: 11
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 355 US 131 (1957)
ARGUED: Oct 15, 1957
DECIDED: Dec 09, 1957

Facts of the case

Question

  • Oral Argument – October 15, 1957 (Part 1)
  • Audio Transcription for Oral Argument – October 15, 1957 (Part 1) in Youngdahl v. Rainfair, Inc.

    Audio Transcription for Oral Argument – October 15, 1957 (Part 2) in Youngdahl v. Rainfair, Inc.

    William J. Isaacson:

    — injunction here in which the court below affirmed the injunction.

    That is the strike and picketing which began on June the 20th, 1955.

    Picketing was by one or two pickets in front of the Rainfair plant and they carry a sign which read, “Rainfair Workers on Strike, Rainfair is unfair to its employees, Amalgamated Clothing Workers of America, CIO.”

    Felix Frankfurter:

    The record is clear as to the number of pickets?

    William J. Isaacson:

    Yes.

    There is no challenge — there is no challenge as to the picketing itself in front of the plant premises, none whatsoever.

    As far as we can tell, it appears all the pickets themselves did was carry the — the signs —

    Felix Frankfurter:

    Did you give the number of the pickets?

    William J. Isaacson:

    Yes, one to two — one to two at each entrance.

    The plant is located on a corner at a street, Rowena Street and there’s another street called Martin Drive, intersecting with Rowena Street and apparently there are one to two pickets at each of these entrances.

    Normally —

    Felix Frankfurter:

    If put together.

    I suppose all the facts must be gathered from the testimony so the Court — just to meet a general finding in a degree.

    William J. Isaacson:

    The Court — the Court didn’t make any findings —

    Felix Frankfurter:

    The counsel —

    William J. Isaacson:

    The trial court —

    Felix Frankfurter:

    The trial court, paragraph 1 is a general — what I call a general (Voice Overlap) —

    William J. Isaacson:

    Yes, yes.

    But in the — in the Supreme Court, however, of Arkansas, they referred to the one of the two pickets and we don’t — we don’t take any exception to — to that statement part.

    There was no violence.

    There’s no threat of violence and that as far as we — as I said, so far as we can tell there’s no conduct whatsoever there.

    Felix Frankfurter:

    But the counsel have found (Inaudible)

    William J. Isaacson:

    Not as to the picketing itself.

    Felix Frankfurter:

    No, as to violence.

    William J. Isaacson:

    Oh, Now, I come — I come to the next aspect —

    Felix Frankfurter:

    I’m not (Voice Overlap) —

    William J. Isaacson:

    — of the strike activity.

    Yes.

    I’m talking merely now with the pickets themselves.

    Now, the next aspect of the — of the activity is the activities in the part of the strikers on a vacant lot, strikers and representatives of the Amalgamated on a vacant lot across the street from the plant.

    William J. Isaacson:

    The location of the plant was on Rowena Street and Martin Drive.

    Across from Rowena Street, there was a vacant lot which the Amalgamated leaves during the strike as strike headquarters.

    And it was on this lot, they erected a tent, they serve meals to the pickets, pickets would wait there for their turn to take their turn at picketing.

    And it was on this lot too, they — on occasion, they would meet and discuss the strike and how it was going and there was a telephone there too, in event, they had telephone from the strike headquarters anywhere else.

    Now, this was the strike headquarters immediately across to the plant and it was here that we find that persons, the Amalgamated testified some four to eight would gather there normally times a few more than 10, 12, 14.

    The Court found that it’s high as 35, as I recollect, gathered at this place.

    As high as that and ranging from 8 to 35 would gather on this vacant lot.

    The street, Rowena Street there was some 20 feet wide.

    There are some questions as to whether there was a ditch on both sides of the street.

    The record doesn’t make it absolutely clear but there is at least one ditch of some 10 feet on one side of the — on one side of Rowena Street.

    So, there’s at least 30 feet separating the vacant lot and the plant premises.

    The plant gave itself to some 35 to 40 feet from the — from the street and the tent itself on the vacant lot was approximately 40 to 50 feet from the — from the lot line.

    It was here that the strikers would gather and if — if this conduct that particularly challenged by the Court.

    The strikers would gather there and they would — they would sing the songs that are traditional to the picket line.

    These songs are the — one of the songs to which the Court made reference, it was “When the Saints Come Marching In” was changed to “When the Scabs Come Marching In.”

    This is normal with picket lines normally, as we — we point out in our brief.

    It’s to take songs which are religious songs and which groups can sing on the favor, appealing and to convert them into union song.

    This particular song is — as the record discloses, turned out to be duke box favored about that particular time and was used the another one —

    William J. Brennan, Jr.:

    Mr. Isaacson, you’re going into some of the details of —

    William J. Isaacson:

    Yes.

    William J. Brennan, Jr.:

    — of the evidence.

    I’m just wondering, what are we suppose to do with the findings.

    I gather this as the significant one, isn’t it?

    Paragraph 2 of the restraint that is — have resorted to violence, coercion and intimidation and such other unlawful conduct that miscalculate it?

    William J. Isaacson:

    No.

    William J. Brennan, Jr.:

    And then the — I noticed that two of two in the Supreme Court’s opinion, this, “According to the undisputed evidence here, the whole pattern of conduct along the picket line discloses a clear design on the part of the appellants, to intimidate and coerce their former fellow workers by a persistent abuse, insults, and conduct calculated the cause, breaches of the peace and other unlawful results.”

    Are you asking us now to look behind the — those strike to me as being concurrent?

    William J. Isaacson:

    I am asking (Voice Overlap) as far as the coercion, the intimidation, and calculated the cause, breaches of the peace.

    Yes.

    We are asking this Court.

    William J. Brennan, Jr.:

    We go behind —

    William J. Isaacson:

    To go behind that and this Court has done that in numerous occasions with constitutional issues that are brought into question.

    Felix Frankfurter:

    Forced way of violence?

    William J. Isaacson:

    Yes.

    Felix Frankfurter:

    I’m asking you.

    William J. Isaacson:

    Yes, I — I am.

    And what — but if we come though, as we come to the question here, you’ll see that the court — the court below does not rely on the so-called incidence of violence.

    The court below pays rather special and careful attention to the picket line activity as described on the vacant lot to wit the singing and the calling to the strike breakers as they enter the plant.

    The court particularly, the court below particularly states — I’m — I’m reading on page 202 of the record and the first complete paragraph, “It is true that an injunction prohibiting all picketing may not be based on isolated and episodic acts of violence or other unlawful conduct.”

    Even if it would be conceded that the acts of violence involved here, fall in that category and they then proceed to go on into the, a holding which I read to the Court in the beginning of my argument.

    So, the Court doesn’t rely on these so-called acts of violence, to which I will come in a moment to this so-called acts of violence.

    They relied particularly and principally on the strikers calling across the street to the strike breakers as they entered and left the plant that they were scabs and variations of that word.

    And as to the songs, they mentioned the fact, there were this song — there was this song that I’ve just referred to when the scabs go marching in and also, they took the song “Davy Crockett” and — and utilized it there to the striker’s purpose — to the striker’s purpose thereto and we have the — we have the language of that in our brief.

    Now, the thing that the Court drew particular attention to and which throughout the trial of the case was the main thing was that it — as the people would come in and go out of the plant, these persons, numbering from 8 to 37 in terms of the Court and we don’t ask this Court to go behind that finding.

    Numbering somewhere between 8 to 37 would stand and would — would shout to the strike breakers as they would walk in.

    They would — they would as the court below found, used such terms as “fat scabs,” “yellow scabs,” “pony tailed scabs,” “crazy scabs,” “cotton patch scabs,” and “fuzzy headed scabs.”

    On a few occasions, the court below noted, the strikers were referred to as “fools,” or “cotton picking fools.”

    These were relevantly few occasions as the Court makes perfectly claim.

    So, we come down then to using these word “scab.”

    I assume that this is a qualifying adjective which drew the attention or ire of the Court and brought down this injunction.

    Presumably, it’s the one word, that word is “scab.”

    Now, nowhere in the Court’s findings is there any indication, if there’s any obscenity, there’s no profanity, no rudeness of any kind, must be remembered also, as I’ve stated at the very outset, they were women talking with women.

    The — there’s no real question here — there’s no real question here of any fear on the part of any of the strike breakers.

    And as a matter of fact, a careful reading of the record as demonstrated that as far as any of the employees who walked across that picket line, day in and day out for these four days that not one of them testified that they’re reporting fear of physical safety, not one.

    The only evidence along those lines comes from the plant manager without any support whatsoever.

    But not one of the employees stated that she was put in fear of physical safety by the women across the street shouted at them.

    Now, throughout the strike, throughout these four days, all of these strike breakers continued to walk in and out of that plant just as they customarily did.

    They came down to Rowena Street, which is the street on which the vacant lot is located where they could have used Martin Drive have they had any feeling there, as they have any feeling that they were disturbed about coming into that plant but they did not.

    They came to — where they normally came and it was down Rowena Street they would come across the — as they came down to Rowena Street, they would turn over a ditch and park with their — the front end of their car right at the building line of the plant there.

    They would leave their cars, in other words, on Rowena Street right across to where the strikers were located, no fear whatsoever.

    William J. Isaacson:

    As a matter of fact, during the lunch hour, they would go out and they will have their lunch at the — at the street there and that there’s no violence here.

    That there was no violence whatsoever in connection to this picket line or with the activities on this vacant lot as demonstrated from the plant manager’s testimony at the trial and also from testimony of the Chief of Police, who said that he had been there everyday, he would go down there everyday to see what was going on and never an arrest, never attempted an arrest and his testimony is.

    Now Chief — I’m reading from page 14 of our brief and it’s 153 in the record, that this particular question and answer took place.

    He said, “Now, chief, you don’t know of any actual violence having occurred down there, do you?

    Do you know any?”

    And the answer is “No, sir.

    We have none.”

    This is the Chief of Police of Wynne.

    As to the plant manager and this is also on page 14 of our brief, 126 in the record.

    Now, Mr. Bonady, when the picket line was thrown up the second time, do you know of any actual incidents of violence that have occurred out there in connection with the picket line?

    You are talking about physical violence?”

    That’s the answer.

    “Is that what you call violence?”

    Question.

    “Yes, physical violence.”

    Answer, “I’ve never observed anybody.”

    Now, this comes from the principal witness in behalf of the company, the plant manager and on behalf of the Chief Police Officer of the community in which the strike took place.

    (Inaudible)

    William J. Isaacson:

    I’m coming to that sir.

    At that the moment, I’m developing just the picket line activity and I’ll come immediately to this incidents to which the Court averted on which it did not rely though, as I put it out before in support of its injunction.

    They merely adverted to it and the current purpose I assumed practicing their — their general opinion here.

    But I would come to that, if — if you — if you will in just one moment.

    Now, on the — still talking in terms of the — of the picket line, every precaution was taken on the part of the — of the representatives of the Amalgamated to avoid any violence because they did, they were quite conscious of the fact that they were in an area where an injunction might very well — might very well issue and they did not — they want to be perfectly playing that there would not be anything that could smack a violence.

    As a matter of fact, on several instances, one of the representatives of the Amalgamated asked the Chief of Police to be sure and be there just to check up, so that the event, if his testimony wherever necessary to any proceeding, he could tell that there was no violence whatsoever in connection to this proceeding.

    And as a matter of fact, the Chief of Police did testify, although as a company witness that there was none.

    There was also an instruction by sign.

    It was posted on the — on the vacant lot which was used as strike headquarters to the effect that there’d be no violence and they meant this completely.

    They meant this officially and unofficially that there would be no violence whatsoever or any threat.

    Now, in addition to Court refers still — if I may, on the picket line activities themselves.

    They refer to two incidents, and one of these incidents is that the two other women strikers make fun of the pregnancy of a strike breaker.

    William J. Isaacson:

    This could take place.

    Two of the women strikers did judge a — one of the strike breakers on the fact she was pregnant.She said later — she said, “I thought I was friend of — I thought they were friends of mine before this thing all began but nevertheless, this is what they did.”

    She did not feel intimidated about it and she felt — she felt somewhat hurt that they — these friends of hers would do this kind of a thing during this particular period.

    Another one of the women on which the Court placed a very heavy reliant, is the fact that one of the women, they judge with one of the women about the fact that she had a low-cut dress and she wore a big earring.

    The Court felt that this woman felt very angry as the result of this and that she felt it’s necessary to work because she had children to support and she took very unkindly to this — to this comment that is made to her, she walked in and out of the picket line.

    The fact of the matter is though and I think it is some significance to show the lengths to which this Court went to support this all embracing injunction and how little — how little there really is in this record of anything other than what I have related up to now.

    And that is — that is the — the testimony of a particular employee in question that appears at pages 13 and 14 of our brief at 146 and 147 of the record.

    The question, “Would you–” this is on — on direct-examination by Mr. Shaver, who was counsel for the company.

    “Could you please tell the Court what they called you?”

    “Well, one afternoon I left as I’ve started to leave the plant when I got off and I was walking by the warehouse and my friends always parks their car in the Martin side Drive and I was going around and Louis Morrison, one of the strikers hollered, “Oh, look.Look there at that low-cut dress and big earring girl” and the speech referring to the manager of the plant, the speech “still like low-cut dresses and earrings and I said, “I don’t know, you will have to ask him”.

    And she said, “If he does, I think I would get me one” and I said, “It won’t do you any good, you don’t have anything to fill it up.”

    Now, the Court — the Court felt this woman was very — very angry and this is one of the — this is one of the main incidents outside of the calling of — of scab on which they play such very heavy reliance.

    William J. Brennan, Jr.:

    Mr. Isaacson, on your view of this record, would — it had been appropriate for the trial judge to have allowed picketing but conditioned upon the discontinuance of this kind of name-calling an epithet.

    William J. Isaacson:

    This — this question was put to me by Mr. Justice Burton —

    William J. Brennan, Jr.:

    I’m sorry.

    I didn’t hear it.

    William J. Isaacson:

    And at that time, I said, “No, it would not.”

    It might adhere to this injunction — this injunction has no support whatsoever.

    William J. Brennan, Jr.:

    I’m not speaking of that.

    I’m — I’m supposing an injunction which merely enjoined this kind of name-calling, an epithet but permitted picketing to continue.

    William J. Isaacson:

    Well, this is the practical question, Mr. Justice Brennan.

    I really don’t feel qualified to answer now.

    What we would have done under — what we would have done had I been consulted under the — under the exigencies of the moment.

    I don’t know.

    I feel now very clearly though that the language which I have read supported by this (Voice Overlap) —

    William J. Brennan, Jr.:

    This injunction is not —

    William J. Isaacson:

    This doesn’t support —

    William J. Brennan, Jr.:

    I know that.

    William J. Isaacson:

    — any injunction.

    This is my point.

    William J. Brennan, Jr.:

    No injunction of any.

    William J. Isaacson:

    No injunction whatsoever.

    William J. Brennan, Jr.:

    That’s what I’m trying to get.

    William J. Isaacson:

    I want to make that point very plain now.

    It doesn’t support any injunction either under our argument that contravenes the Fourteenth Amendment or under the argument that it contravenes or rather it cuts across, interferes with activity which are permanently protected under Section 7 and Section 13 of the National Labor Relations Act or —

    William J. Brennan, Jr.:

    No, no, forgetting the preemption point.

    William J. Isaacson:

    Just on the Fourteenth Amendment question?

    William J. Brennan, Jr.:

    Yes.

    William J. Isaacson:

    My point is that, this clearly false encompass of free speech.

    William J. Brennan, Jr.:

    Scab and no matter how qualified.

    William J. Isaacson:

    And —

    William J. Brennan, Jr.:

    And how often they tell them to reiterate it?

    William J. Isaacson:

    Yes.

    And I — and I’ll come to that point right now, if I may, because the question is does this — does this speech on the part of these employees, the strikers, does it — actually, the court below found coerced and intimidate.

    Does is it calculated or the breach of the peace.

    But I think the number of the circumstances here, first taking the empirical demonstration that there was no violence — there was no outburst, there was no question raised at all here during the activities.

    I think this go as far to show that this — this was pure speech in this particular instance.

    Further, you must bear in mind that here’s a group, a small minority in this very rural community, Wynne, Arkansas, who have just recently bonded together there, to get for themselves higher wages in condition to the employment through a labor organization.

    They find themselves immediately thrust into this position of martyrdom.

    They are discharged from the plant.

    Under these circumstances, the only way that they can really begin to bolster their — their standing there at all — if not to standby silently as the strike breakers who had been part of their organization.

    A few of the strike breakers testified that they had signed this card but nevertheless, the immediacy of the moment, the need for — the need for food as one of the woman put it, made her go through this — through this picket line.

    I’m sure this was a difficult choice for her to make and was a very difficult thing for the strike — for the strikers, to see these persons who had been part of their group activity there walking, knowing full well that at this point, they were now embarked on very forlorn effort because this company has not be turning to — to the plant and they knew — they knew then that very little chance of going back to that plant.

    Now, the persons who are walking into the plant knew that they had the support of the employer, the single employer in this community, which is a powerful support in a small area where there aren’t any other employing industries.

    They knew that they have the support of the Wynne Industrial Development Corporation of businessmen in the city.

    They knew that the police were not unfriendly to them.

    They came — they came in there completely free of any fear, of any molestations, of intimidation, of coercion of any kind, and the fact is best born out as I — as I began saying by the — this empirical demonstration that nothing took place.

    No one ever interfered with them and not one of these employees by the way, not only was not in turn going into the plant.

    Not one of these employees was persuaded.

    Now, this may show that this argument which was being advanced by the strikers, through the strike breakers was not an ineffective one.

    William J. Isaacson:

    But the fact that ineffective or ineffectual under these particular circumstances does not take away from it, its constitutional protections.

    Felix Frankfurter:

    What your — what — what your interesting argument occurs in my mind is to whether that you — unless you really, the ultimate reach of what you’re arguing, ultimately, to me as your argument was that you really ought to attack the right — constitutionality of the right to work statutes because, I know you’re not making that argument but that’s what it gets down to.If Arkansas and other State passed a statute of a rigorous kind that they do whereby they want not only to have no coercion by the employer but also affirmatively as it were, keep the line very free for a fellow who doesn’t want to join the — a good reason or a bad reason or even different reason that he shouldn’t be persuaded in that by — I think that I’m dealing this argument from the paper or in books or in legal periodicals or journals.

    But the fact you — that you reiterate this is a small town to withdraw.

    The smallness has in effect the other way around in a community in which the policy of the State is or it is (Inaudible) —

    William J. Isaacson:

    If I may —

    Felix Frankfurter:

    And if you — and if the State say that is its policy and the people who want to enforce that policy or like that policy are to get out obstructions put in their way that may recently be deemed by the State of the obstruction.

    It may not fit in here an independent judgment as to the — whether they are or aren’t.

    It is merely a question that you must prove coercion, what you call coercion, violence, is that all there’s to it?

    William J. Isaacson:

    May I say this — may I say this in — in response to Mr. Justice Frankfurter.

    You used the term that the State has the right to —

    Felix Frankfurter:

    I’m saying, I’m not shutting you off from (Voice Overlap) —

    William J. Isaacson:

    — permit people to dissuade these persons from going in.

    At one point in your question, you said that the — that the State of Arkansas said that these people should not be allowed to dissuade this persons from going in.

    Felix Frankfurter:

    By (Voice Overlap) and referring to a woman’s condition etcetera, etcetera.

    That isn’t just dissuading.

    William J. Isaacson:

    But let me just say this.

    These were not the exact result, Mr. Justice Frankfurter.

    The real question is —

    Felix Frankfurter:

    But the Court has found them —

    William J. Isaacson:

    — the real question is scab here and this was what the testimony develops and this is what the Court to say in its opinion.

    And as to that, what the strikers were doing under those circumstances, were really asking these persons to examine the moral implications of their break from the group activity of which they had been apart.

    Now, it’s true that it’s a vigorous word they were using, a most vigorous word.

    Felix Frankfurter:

    And of assistance and — an accumulative effect.

    William J. Isaacson:

    But it was —

    Felix Frankfurter:

    Just saying — just saying “Would you please, in your country or in your long reign of self-interest consider whether it isn’t desirable for you to join the union.”

    That isn’t what this is and I’m not saying that I haven’t — as I have written at least one opinion to reveal of sympathy, what you say about — what are the usual terms.

    What we are dealing here was a large policy of a State which for all I’m concerned has been attacked?

    William J. Isaacson:

    I’m going — I’m going to reserve just a few moments of the — my time, if I may?

    Earl Warren:

    You may.

    William J. Isaacson:

    And merely to just say this in response to your question here.

    William J. Isaacson:

    That the fact it was insistent, the fact that it was done there by this persons standing on the vacant lot, doesn’t in my mind show any intimidation or coercion here but this wasn’t it, this was a truthful appellation and I say to this Court that if they find, if they were to find this use of the term “scab”, a truthful appellation were to be part and not fall within the constitutional guarantees of the Fourteenth Amendment.

    Then (Voice Overlap) they may very welcome to say that strike breakers to be barred or traitor or Judas or all of the galaxy of synonyms here for what these persons has really done here in breaking away from the group activity.

    Is this Court going to do what Justice Cardozo, at one point, sitting as a judge in New York Court of Appeals, engaging this very ludicrous process of finding which — which of these truthful appellations the strikers may or may not use.

    Felix Frankfurter:

    But it wasn’t operating under a statute like this which the state deems as the desirable authorized policy of the State.

    He was just dealing with common law question of granting on denying an injunction which is a very different story.

    He wasn’t passing on the constitutional power of the State.

    William J. Isaacson:

    And may I — well, I’ll reserve the balance of my time —

    Earl Warren:

    You may.

    William J. Isaacson:

    — if I may.

    Earl Warren:

    You may, Mr. Isaacson.

    William J. Isaacson:

    Thank you.

    Earl Warren:

    Mr. Shaver.

    J. L. Shaver, Sr.:

    Mr. Chief Justice, the Court please.

    At the outset, may it please the Court, the — I’ve gotten seriously whether we would be the termed strike breakers.

    That puts us on defensive to be a strike breaker.

    I’d like to drop that in because we were working at the plant.

    These employees were working at the plant.

    They had the right to work at the plant and they wanted to continue to work at the plant.

    49 people went out on strike and when they went out on strike, the rest of them did not go out on strike but continued to work.

    So, as to whether we are strike breakers are not under Arkansas law or scabs or whatever, the union which is to call us, we say that we are not.

    Now, the case to — to us seems simple.

    Rainfair Incorporated manufacture slacks and they have been in a little town of Wynne where I was born and raised and I like it.

    And there are 107 employees, the people of Wynne are trying to get in the industry and they donated and put up money and got industry, got the one little plant there to manufacture slacks.

    Well, on the week ending before May 2nd, I believe on Monday, May 2nd, on Saturday or Friday, everybody was happy and quit work and on Monday, when the management got there, there’s a picket line around the plant in about 10 o’clock and 11 o’clock.

    The union warns management that a strike was going on.

    Now, 29 of the employees struck and they picketed there for I’d say two weeks.

    I — I believe, I’m correct on that.

    Nobody — May the 19th, they quit.

    Now, doing that picket line, they didn’t do very much damage.

    They threatened to whip the manager, Mr. Bonady said he’s a northerner came from Wisconsin and that he was going to run back to Wisconsin and wipe up the conflict with it.

    J. L. Shaver, Sr.:

    Around the plant is parking places for cars, there was nails found strewn all of over parking area one morning.

    And those, as I’ve said found strewn on that.

    And another time, there was a cart of roof intact.

    Beautiful shining roof intact, it was thrown in Mr. Bonady’s driveway and in the driveway of the employees.

    And they were no — I say, they were found that the next morning.

    But with all of that, there was — there’s nothing that was done about the picket line.

    On the 19th, the union warned that they were sending back this 29 employees or they notified mandate.

    When the — I forgot to tell you this, when the 29 refused to report for work Monday morning, management wrote them a letter and asked them to come back and said, “if you don’t come back, we presume that you do not want to be an employee” and I think three came back.

    Now, when these other employees came back to work, the management didn’t take them, they employed 13 additional people.

    And then it brought their own until about June 20th and they had the meeting down at Forrest City, Arkansas and what happened at that time was simply this.

    They voted to go on a strike and I believe it was started, I think, I say the picket line was started in the middle of the night.

    Now, if you would listen here to Mr. Isaacson, you would think that with this woman that was pregnant and the snake in this garden — you’d think that we’re in the Garden of Eden when he talks about what happened but the picket line started at 12:30 at night because two of the strikers who didn’t did like Mrs. Newby who was a worker, drove up in front of her house and Mrs. Newby lived in a trailer.

    And Mrs. Newby wasn’t asleep.

    She had a daughter stay in there.

    So these two strikers had been going back and forth on Rowena Street which runs north and south in a little town and the plants on the west side and Mrs. Newby’s trailer is on the east side of Rowena and just north to the plant.

    That was her home and she will sleep there and she had gone down and wasn’t asleep, she was leaning down and all of a sudden, she stepped out and two of these strikers, I believe Roberts and someone I don’t know, punctured two of the tires of other one.

    A punctured toward the tires of the automobile that Mrs. Newby’s daughter owned and was parked in front of her home.

    She immediately got up and called the law.

    The law arrested them.

    They went down and try them and was convicted and fined and that’s undisputed in this record.

    Well, about 5:30 or 6 o’clock, the law was called again and one of the windows of the plant was knocked out and there was a five foot black snake laying closed to the broken window.

    And the city marshal down there (Inaudible) he goes own and he captured the snake.

    So, we’ve got — we’ve got a snake in the plant at 5:30 in the morning and we’ve got these two strikers operating at 12:30 that night.

    What kind of snake was it?

    J. L. Shaver, Sr.:

    All I know, it was a black snake.

    [Laughter] So, when the picket line started the next morning, they rendered a lot right across from Rowena Street on the east side of the streets 18 feet wide, the grass was 18 feet on it.

    And right over here was the lot, they put a tent and three benches and some chairs, and that was the focal point for the — what the union folks called “picketing activity.”

    And that was a place that all the trouble start.

    Now, they said that they just walk up and down the street out there and having a picket and add something on it — some kind of a sign on it but that didn’t work out.

    Now, what — what really happened out there, when the picketing was resumed then usually one or two pickets would walk and carry signs up and down Rowena Street.

    J. L. Shaver, Sr.:

    Other union staff members strike as they sympathizes would assemble under and around the tent in groups estimated at different time from 8 to 37.

    It was a focal point of all these picketing and the headquarters for the concerted action will be the name calling, singing or jeering.

    As the employees would go to and from work at the plant, or go to lunch, or take a recess, this was a persistent thing.

    This was a combination of people.

    The strikers would contemplate along the west edge of their lot and sometimes in Rowena Street engaged in loud and offensive name calling, singing, and shouting directly at the workers.

    Now, what did they do?

    This group fair would insult these workers and when we were asked — when Mr. Youngdahl, Mr. Becker and the other gentleman that represent the union was asked “Why did you insult them?”

    “Oh, was that insulting them?”

    ”Yes, it was insulting them.”

    “Do you mean calling them those names was an insult?”

    “Yes, that was an insult.”

    “Do you think you could persuade people by insulting them?”

    “No, I don’t think we could.”

    Now, the question here with reference to the meaning of scab right there, I say, that question is outside of this lawsuit.

    Now, when the people themselves who used the word and who construed it to be an insult and who said that if they had been called those names, they would have been insulted.

    I don’t see why we have to go to Webster or Merriam or Greenway, or any of these people that defines the meaning of various words.

    Now, is there — is there any question about a person having any privacy about going to work?

    For instance, if I am going down the streets of Wynne, Arkansas and it is a little town again —

    Hugo L. Black:

    What is its population?

    J. L. Shaver, Sr.:

    4500.

    Hugo L. Black:

    Pretty good size though.

    J. L. Shaver, Sr.:

    It’s the right east — right west of Memphis.

    It’s about 50 miles west of Memphis.

    Those are good times.

    [Laughs]

    And I’d like to say, they’re good people down there and when he charges in his brief here about our ignorance and how cool we are down there.

    I’d like to take exceptions to that, that hasn’t got anything to do with the lawsuit here.

    Any charges that these people that didn’t strike were those kind of people but what kind of people were those that did strike?

    Were they the same type that they accused us of being in?

    In other words, I feel more here like I’m arguing to a question of fact to a jury in this — in this thing, what is the question of facts here?

    J. L. Shaver, Sr.:

    Now, the thing that always approached me as I sit down there and meditate and contemplate, read the decisions of this Court and it is really a great honor to me to have the opportunity to address the Court.

    I sit down there and wonder.

    Do these people that want to strike and these people that don’t want to strike — do these people that strike, do they have the right to mistreat and abuse people that got the same constitutional right that they have on their philosophy of life?

    In other words, aren’t we weighing and equating here just enough in this little Rowena Street strike, the question of the right to work, the police filed a state, the criminal laws of the state, the right to strike.

    If — do this make sense?

    If I’m walking down the street with my wife and she was pregnant, and from 8 to 25 people, four times a day for four days, or twice a day, would stop her and say — well, the first time that they will picket — if they didn’t have anything to say to me, I mean you know they didn’t say anything but the last time when they hollered, “go get the hot water ready.

    And I’m coming to make another payment on the baby, call doctor beat” and here last week, I went to the doctor and one day they said, “well, you can work another hour until you go into the delivery room.”

    They said, “There’s no need in going up there right now.”

    And when I came back, they asked me, “Did I go on a false alarm.”

    Yes, conditions like that.

    There’s the law.

    Does the Fourteenth Amendment — does the Fourteenth Amendment deal to anybody that wants to strike, a constitutional right to insult a woman because she has to work and carrying a baby?

    Now, let’s see what they said about it.This is their construction.

    On page 58 of the brief, when taken place between women, either who have grown up together in a rural community, who have attended the same school, and who now attend the same church, they appear to be little more than good natured man.

    In this category or the jocular remarks addressed to one of the women who was pregnant, and another whose dress was cut somewhat revealingly.

    They not only called those workers persistently, call them “fools”.

    Is any — does that convey any idea?

    Is there something society gets out to call a man a fool?

    I don’t know.

    I — I think it’s an insult.

    They call them “yellow scabs”, “cotton patch scabs.”

    Now, who did all these?

    Mr. Youngdahl, Mr. Becker, and I can’t recall the other man and the two other staff members who were Ruth Kimsey (ph) and (Inaudible) that was the staff there.

    They did this thing persistently and continuing.

    There is one — one instance — let’s take this.

    Perhaps it shows what they did here.

    Two of those young ladies left in the car and went downtown to get some gasoline and two of the strikers drove up and said, “Don’t wait on them.”

    The filling station man says, “Who got here first?”

    And he said, “Don’t wait on them because they are scabs.”

    Now that happened.

    J. L. Shaver, Sr.:

    Now, what did they do to the manager?

    Well, the manager would leave and go to town or go to different places and they followed him in the car.

    They just — the strikers would follow him and they’d go where he went and just followed him and escorted him.

    They say, “That’s not intimidation”.

    “I guess the man has got a right to drive his car downtown without being followed”.

    I don’t know whether he has not.

    Now, what did they do to his home at night, the phone would ring, they add on party lines out there, like 61F and so forth and then you — everybody rings on the party line and he answers and he can’t find out who’s calling.

    So, it continues to ring until 12 o’clock at night and finally he has to have it shut off and that — and that’s what happened in that case.

    So these things continued on to four days until we got the injunction.

    Now, something has been said about this one snake in the plant.

    During the trial of the lawsuit, there was a lot of glass found, strewn all over the parking lot and during that trial they didn’t — the Court didn’t like it.

    They had issued the temporary injunction and on its motion, the Court turned the glass over to the sheriff and asked the sheriff to find out who did it or the city marshal.

    And they found out that two boys did it and he cited the boys and their parents to show cause, why they shouldn’t be adjudged and contempt to Court.

    During that hearing, the — one of the called boys said, the reason he did it, he just didn’t like Mrs. Newby.

    She was a worker and she was — she was — they didn’t want to have anything to do with Mrs. Newby.

    The other boy said he didn’t know why he did it but there’s a good friend of mine, we know everybody down there in my town.

    I know all these person and I know Lee Hamrick was one of the boy’s father and Lee had been a striker in the first strike and had a home right there where Ms. Newby’s home was.

    So, Lee got up to testify because he — he was cited for contempt and just before he got out off the stand, I asked him this questions and I’m reading from 189 of the record.

    “I want to ask you one more question.

    Is this true or not?

    Did you tell me out there when we were talking at the reason you got out the union was because they had tried to get you to do violence and destroy property?”

    “I said some of them had tried, Mr. Shaver and I wouldn’t do it.”

    ”Wait a minute.

    What did you say?”

    “You couldn’t hear me?”

    “I said they did try to get me to and I wouldn’t do it.”

    “Who tried?”

    “I didn’t say who.”

    “I know you didn’t say it but would you tell me now?”

    I won’t tell you now.”

    J. L. Shaver, Sr.:

    “Wouldn’t you tell me whether — some of the people who were on the picket line?”

    I won’t tell you that.”

    “You won’t do that?

    Was it Mr. Youngdahl?”

    “No, sir.

    I won’t say that.”

    “You won’t say that?”

    “You can call them all and ask them.”

    Mr. Hamrick started out off the stand and the Court intervened at that time because he told, he won’t answer the question.

    And the Court said, “I think you can answer the question, Mr. Hamrick.

    You would have this sit up here.”

    “Did Mr. Youngdahl try to get through to destroy the property?”

    The Court.

    “Now, answer the question.”

    “No, sir.”

    “All right.”

    “Now, I want to ask you to give the names of the people who were on the picket line that is, that were involved in the strike.”

    “Wait a minute.

    Name the people involved in the strike that tried to get you to destroy or damage property.”

    “It wasn’t any of them.”

    “Now, I want you to give the names of the people here, who asked you to damage or destroy a property, the Rainfair people or the workers of the Rainfair Corporation?”

    Answer.

    “Didn’t anyone asked me to destroy the property.”

    Question.

    “What did they asked you to do?”

    “They asked me to put snakes and stuff like that in there.

    They asked me too but I wouldn’t do it.

    Now, I didn’t know what he was going to say.

    He had told me — I thought he had told me to try to get in to destroy a property.”

    And then I say, “Wait a minute.

    J. L. Shaver, Sr.:

    They wanted you to put snake?”

    “In the plant?

    You knew a snake was found in that plant.

    Didn’t you?

    “Yes.”

    “Did you put the snake in there?”

    “No.

    I didn’t.”

    “Who was it, wanted you to put the snake in there?”

    And I allowed him, this is what you call dodge in the law you know when he’s asking.

    Well, he lives in Augusta now, that’s another town over there and I didn’t pursue it any further because that’s about what he said, happened in that case.

    But anyway, we do have here the findings of the Court.

    We have the — of the lower court, we have the — the recruiting of people to throw snakes in the plant.

    We have a snake in the plant and we have two girls sitting in the lawn one afternoon when two of the strikers went by and said, “You better shake your sheets tonight.

    You might find some snakes in your sheet.”

    Now, I don’t know whether that’s enough testimony or not.

    It was enough testimony for the lower court and it was enough testimony for the Supreme Court on — on that one basis.

    But in order to sum up as far as the facts are concerned, it would seem that the tacks, the nails, the snake, the testimony of Hamrick, the congregating, the blocking of the workers coming in and going to the plant and coming in to the highway and backing the cars out, what I call mass picketing, they call it concerted activity.

    I call it as much picketing as to come out in a group and have a plan to stop people from going to work, as much picketing as it is can assign in walking down the road.

    So, as far as the facts are concerned, I take it that it’s still the law that the Court will forward the facts here that is defining of the state court would be supported and these cases.

    There’s no — you gentlemen — these cases cited in this brief here.

    It starts from Thornhill v. Alabama, a group — it is imperative that when the effective exercise of these rights are claimed to be abridged, the Court should weigh the circumstances and the phrase of substantiality of the reasons advanced in support of the challenge regulation.

    Harold Burton:

    Mr. Shaver, you mentioned the fact that at the time of the May strike and picketing, there was no violence, there was no (Inaudible).

    And do you think accepting what was done at that time or does the —

    J. L. Shaver, Sr.:

    Or what we do, we say that this whole thing was plain a pattern and we think after May, the violence there was — was the tacks and the nails and the threats.

    Harold Burton:

    Could you take acceptance to what maybe between a peaceful picketing of the pickets walking up and down and (Inaudible) wasted their time and nothing more.

    J. L. Shaver, Sr.:

    No, sir.

    In other words you mean in the first —

    Harold Burton:

    In the first or second if that is a normal one.

    J. L. Shaver, Sr.:

    Oh, I think if all that’s done is walk up and down and there’s been nothing more, I think it has been a peaceful picketing.

    Harold Burton:

    The Government suggested also that this language cover that, prevent that?

    J. L. Shaver, Sr.:

    Yes, sir.

    Harold Burton:

    You think you can simplify them?

    J. L. Shaver, Sr.:

    Yes, sir.

    It is — I think that’s the — I think that’s the only question in this case in my humble opinion.

    In other words, is the — is this injunction too broad?

    That’s — that’s the question they raised there.

    Now, this — may I address myself to that question?

    Harold Burton:

    (Inaudible)

    J. L. Shaver, Sr.:

    Well, you say Meadowmoor.

    Now of course we understand the Meadowmoor case that you’ve got to get killed and bombed and stench bombs and — and all those things before we have any right.

    The — the lawyers talk about — you have to have actual violence not intimidation or coercion or it continues of it after the injunction is granted, the expectation of a continuance of it.

    And that’s what I understood Meadowmoor was.

    Now, we had a judge down there in Arkansas named Judge Frank Smith.

    He’s very much beloved.

    (Inaudible)

    J. L. Shaver, Sr.:

    Yes, sir, for 30 odd years.

    And it became his — if you’d pardon me for quoting this just a minute because the United States Supreme Court has also quoted as I understand.

    I quoted an Arkansas case once before Judge Trieber, federal judge in Little Rock and he told me never to do that again.

    He was just joking with me.

    I presumed I was young and scared to death and I toss my book up immediately.

    Felix Frankfurter:

    He was quite a quoter himself, wasn’t he?

    J. L. Shaver, Sr.:

    He was a wonderful judge.

    Felix Frankfurter:

    He quoted a lot.

    J. L. Shaver, Sr.:

    But in this — this 135 Arkansas at page 86.

    It — it’s the foundation case of Arkansas law.

    And it was decided in 1918 and it is a question of first impression in this State and a number of other States like this one have no cases on the subject.

    So, all this case holds the — the right to carry on a lawful business without obstruction is a property right.

    And one which the courts have never hesitated to protect and its protection is the proper object for the granting of an injunction.

    It’s a well thought out case.

    J. L. Shaver, Sr.:

    It quotes here from a Georgia Court, in discussing a similar question, the Supreme Court of Georgia said that the conduct which operates upon ones fear rather that upon his judgment or his sympathy is coercive, crowd is naturally collect, disturbances of the peace always eminent.

    The interference with this business was direct and immediate and it was intended to be.

    In other words, they intended to insult these people and they intended to create — intimidate them and create fear in them so that they would not go back to work because they said they intended to do it.

    Well, this case that’s — that’s the case, that’s been the law in Arkansas since 1918 but they’ve got to jump on the judge opinion and said his opinion was an anachronism.

    It was out of date.

    And that was Riggs v. Tucker Duck & Rubber Company.

    It’s cited in the brief, its 196 Ark. 71.

    And in this — in this case, they answered our procedure down there and I don’t know where the — and in this case came up from Fort Smith and it’s a question of an injunction being all inclusive and this injunction, it’s drawn in this case, it was drawn from the worrying of this — the Tuckers case and the Riggs-Tucker case.

    In other words, I copied the words from them.

    That’s where I got the injunction.

    The objection of that injunction against all picketing of appellee’s place of business whether done peaceably or not was too broad and in access to the jurisdiction of the Court.

    The grant could not be sustained where the answers to the complaint asking that the injunction be made violent, did not raise such an issue or denied that the picketing had been conducted in an unlawful manner and there was nothing to indicate an intention to modify the methods used.

    No legislation has been enacted in this State, depriving the courts of power to issue injunctions and labor strikes and proper cases.

    While labors have the right to organize for the purpose of collective bargaining or improve the conditions upon which they work to go on strike if these demands are not met and to peacefully picket as a means of enforcing their demands, they may not use force, violence, coercion or intimidation but must so use their right to strike and picket as not to interfere with the rights of others.

    When picketing is so unlawful as to indicate the defendants do not intend to use their right in a lawful manner.

    It may reasonably be expected that such unlawful conduct will in the absence of an injunction continue and the trial court may in exercise of their discretion enjoined further picketing all together.

    Where picketing conducted by defendant consists of one continuous transaction involving unlawful conduct on their part and showing by a systematic course of conduct and concerted action, their intention to accomplish their purpose even by unlawful means, actually will do complete justice by enjoining the whole of the unlawful proceeding.

    Now, over here, that — that has been the law in our States since 1980.

    Now, the last — on page 584 of the opinion, we repeat again the issue involved in the trial of this Court and the court rule was not that of the right to picket peacefully.

    The Chancery on his opinion quoted from Mr. (Inaudible) case which expressly recognizes that right.

    The appellants did not ask a modification of the temporary restraining order to that effect.

    On the contrary, they denied having violated any law or any of the rights of their employer and there was manifested an intention to continue the conduct they had previously pursued.

    It was evidently the view of the court below that the right of picketing peacefully could not be made excuse for the concerted plan of intimidation, coercion and violence which the pickets were employing, not only with the approval but with the instigation — instigation of the leaders.

    Now, that — that has been our law down there and it — the question is whether that violates the — it’s too broad or violates the Fourteenth Amendment.

    We don’t think it does in this case because as we quote in our brief, Milk Wagon Drivers versus Meadowmoor and also, 132 A.L.R. and down the proper procedure is for respondents to file a motion to modify the injunction in the trial court even when respondents are able to show the trial court, that peaceful picketing would be carried on by the union, they are free to do so.

    The union does not attempt to make any such showing.

    Now, there are three cases there that’s what our court has said as to how to get your record straight.

    That’s 221 Ark. 509 and 225 Ark. 699.

    Those are two of the late cases in our State.

    And this (Voice Overlap) case is — hadn’t been out here.

    J. L. Shaver, Sr.:

    It’s in the advance sheets.

    Hugo L. Black:

    Was that where there was actual violence perpetrated by the picketing?

    J. L. Shaver, Sr.:

    I think — I can’t answer that.

    I know that this last case was not.

    What happened there was that a person has been enjoined from operating his grocery store on Sunday and he kept on operating.

    Hugo L. Black:

    It grant the injunctions and he claimed that that the injunction was too broad and they claimed that proper the places — the Supreme Court says, the proper place to get this done is for the trial court to show that you will peaceful picket and the — the owner will be taken care of at that time.

    J. L. Shaver, Sr.:

    I gather that you are — you argue that the Meadowmoor case is — doesn’t go quite far enough but it provided it in the background of (Inaudible) —

    Yes.

    Hugo L. Black:

    — actual violence.

    An injunction could be issued to refrain even peaceful picketing.

    You say that the same things should apply here so — and you cite that the violence made with the rattle snake — not a rattle snake, I guess?

    J. L. Shaver, Sr.:

    No, sir.

    Hugo L. Black:

    Just a plain black snake.

    J. L. Shaver, Sr.:

    Well, I’ll cite the pattern set at the early picketing devotes on — on May, the — the nails and the tacks and the threats to wipe the street clean, the manager and the threat to Ms. Newby and move her out of her house, that’s all in that record.

    And then they — then after they come back the second time was then they come back by puncturing these tires and throwing a snake and that’s all the violence there is in the second picket.

    Hugo L. Black:

    Exactly.

    That would be lawlessness in —

    J. L. Shaver, Sr.:

    That the — the puncturing —

    Hugo L. Black:

    It might be violence also (Voice Overlap) —

    J. L. Shaver, Sr.:

    Yes.

    That’s all it’s — that’s all it said in that second picket line.

    When we tried — I tried to show the whole pattern of the conduct during the whole period of time is what I’ve tried to do.

    Now, then these other matters, I just like to take them up shortly.

    I’d like to raise this before I overlook and that’s the fact that there wasn’t any question of preemption ever raised in the lower court.

    Felix Frankfurter:

    (Inaudible)

    J. L. Shaver, Sr.:

    Preemption.

    Felix Frankfurter:

    Preemption, I beg your pardon.

    J. L. Shaver, Sr.:

    When this case was tried and all this labor record that Mr. Isaacson has talked about.

    There’s nothing like that in this record.

    This was just a straight suit to enjoin intimidation, violence and so forth by a state, before a State Chancery Court.

    J. L. Shaver, Sr.:

    That’s all it intends in this record.

    Now, all this other that they brought in here, they brought it in within their brief.

    (Inaudible)

    J. L. Shaver, Sr.:

    It was raised in the Arkansas State Supreme Court the first time.

    It wasn’t raised in the trial court.

    The answers in the trial court set out the Fourteenth Amendment and they set out further about the unfair labor practice.

    Now, that’s one of their answers in the lower court, unfair labor practice.

    There’s no evidence.

    There’s nothing in the record except that long statement of unfair labor practice.

    Felix Frankfurter:

    Mr. Shaver, if your Supreme Court in fact — if your Supreme Court had said you can’t raise these question for the first time before us, the Supreme Court of Arkansas, that would have been one thing, but your Supreme Court passed on the issue.

    J. L. Shaver, Sr.:

    I didn’t even argue it, Your Honor.

    Felix Frankfurter:

    But I — but they — they accepted the issue and dealt with it on the merits, didn’t they?

    J. L. Shaver, Sr.:

    Well, I don’t —

    Felix Frankfurter:

    They rejected it but they — they rejected the validity of the argument but they considered it and passed on it.

    J. L. Shaver, Sr.:

    I don’t think they meant to.

    Judge Mulvey

    Felix Frankfurter:

    Well (Voice Overlap) —

    J. L. Shaver, Sr.:

    I have that.

    He said —

    Felix Frankfurter:

    He’s talking about it, didn’t he?

    J. L. Shaver, Sr.:

    Sir?

    Felix Frankfurter:

    He talked about it?

    J. L. Shaver, Sr.:

    Yes, Your Honor.

    He — he really talked about it but he said that — and it hasn’t been raised.

    It’s raised for the first time in this Court.

    And that was the — that was the first time it was brought up.

    There is nothing in the — in the record and all this record — in this brief that Mr. Isaacson had here.

    There’s nothing like that.

    Now, there’s a question involved —

    William J. Brennan, Jr.:

    But Mr. Shaver, may I ask you another — your Supreme Court, said not only — I’m looking at page 202 of the record.

    William J. Brennan, Jr.:

    Was the question not raised below but then follows this.

    In the appellants expressed the unwillingness to await the action of the National Labor Relations Board on their charges of unfair labor practices against (Inaudible).

    Before proceeding with the trial of the instant case, what does that concern you?

    J. L. Shaver, Sr.:

    The record shows that they ask for an election.

    And after they had the strike and did 29 strikes, they withdrew their request for an election.

    That is the union —

    William J. Brennan, Jr.:

    Well, I wasn’t referring to that.

    Apparently, in the court below, what — what does this mean, the appellants expressed an unwillingness to await the action of the Board, the National Labor Relations Board on their charges of unfair labor practice before proceeding with the trial of the instant case.

    Did that happened in the trial court?

    J. L. Shaver, Sr.:

    No, sir.

    There was a testimony by Mr. Youngdahl.

    In taking the testimony, I asked him and they withdrawn their request for an election.

    I think, I’m quoting the record straight and that’s the only place it appears in the record.

    William J. Brennan, Jr.:

    Well, I don’t understand what your Supreme Court means then when it.

    This indicates that there must — the issue must have been raised somehow in the trial court.

    J. L. Shaver, Sr.:

    It was not.

    Only that one — one statement in the record, Mr. Justice, It was — it had one statement by Mr. Youngdahl in that record.

    I can’t put my — my hand on it now.

    But that’s the only place in the record that has anything to do with the election, I mean any testimony.

    And I think counsel for the other side will agree to that.

    Earl Warren:

    What was the course of the proceedings in those unfair labor practices charges, Mr. Shaver?

    J. L. Shaver, Sr.:

    I can’t answer that.

    I just represented the Rainfair in this injunction proceeding.

    I had nothing or whatever to do with that.

    But as I understand it why they — and I’m — I’m telling you from — Your Honor, from just as I understand it now.

    Earl Warren:

    Yes.

    J. L. Shaver, Sr.:

    But I — as I understand it, for instance they claim that they would discriminate against because they weren’t permitted to vote and they filed 83 charges but the Board held that it wasn’t to discriminate the Labor Board.

    And then — they — what happened to them, they just lost the election.

    And they —

    Earl Warren:

    But did the Board —

    J. L. Shaver, Sr.:

    — and other thing had happened — excuse me, sir.

    Earl Warren:

    Well, if I may ask — want to ask you.

    What did the Court do?

    As I understood it, they did require the company to post a notice that it would refrain and so forth?

    J. L. Shaver, Sr.:

    I — I read it for the first time at noon today that they —

    Earl Warren:

    Yes.

    J. L. Shaver, Sr.:

    That’s the first time I’ve seen it and they required to post a notice to some but they went on and they finally agreed to an election.

    And then here’s another thing.

    It wasn’t 29 that went out on a strike.

    What was the management supposed to do under the Arkansas freedom to work law?

    79 of them or 80 of them wanted to work and they had a right to ask for an election.

    The management asked for an election and so did labor and finally they had an election in labor law.

    Felix Frankfurter:

    Am I right in inferring that you — you are the lawyer for Rainfair Inc.?

    Is that a fair inference?

    J. L. Shaver, Sr.:

    Am I sir?

    Felix Frankfurter:

    If you are the lawyer — that you are the lawyer for this concern.

    J. L. Shaver, Sr.:

    Yes, sir.

    Felix Frankfurter:

    Well, I must say and maybe it’s just my curiosity that speaks about a settlement in a factory and neither the lawyer and the lawyer of the company doesn’t know anything about it and counsel for the — for the union says he doesn’t know — the union wasn’t a party to it.

    I wonder with whom this settlement was made?

    J. L. Shaver, Sr.:

    I wasn’t the lawyer.

    Mr. Sorbello (ph) represented them at that time.

    I didn’t represent them, Your Honor.

    That’s an actual statement of fact.

    Felix Frankfurter:

    Well, I’m not —

    J. L. Shaver, Sr.:

    Yes.

    Felix Frankfurter:

    — the person to blame if you were or weren’t but I thought you’re the counsel in this case and you said this, the first time you read of this settlement?

    Mr. Isaacson said that the union isn’t the party to it.

    I just wonder whether this settlement came out of the sky.

    J. L. Shaver, Sr.:

    I don’t think it did.

    Felix Frankfurter:

    You don’t think it did?

    J. L. Shaver, Sr.:

    No, sir.

    But it — I’ll tell you it is not in the record.

    It’s none of this labor business in this record.

    Hugo L. Black:

    I assumed, Mr. Shaver.

    That if the company — if the union is guilty of the things that the courts found them guilty of, it was guilty of an unfair labor practice under the national law wasn’t it?

    J. L. Shaver, Sr.:

    Well, these — these cases that I cite here.

    I — I’ll try to — I’ll try to come under the — the police power of the state where the exception has been made —

    Hugo L. Black:

    I — I wasn’t talking about that.

    If — if they’re guilty there that that’s an unfair labor practice isn’t it under the — they have done this intimidation and coercion and threatening and so forth there.

    They would — would that not be an unfair labor practice under the National Labor Relations Act?

    J. L. Shaver, Sr.:

    Well, take — I think United Auto versus Wisconsin.

    I think that case decided here in 1956 as a general matter.

    We have held that a State may not in accordance of its public policy enjoin conduct which made an unfair labor practice on the federal statute.

    But our post Taft-Hartley opinion have made it clear that this general rule does not take from the States, file to prevent mass picketing, violence, overt threats of violence.

    Now —

    Hugo L. Black:

    Well, all these name — this scabs holding and all that what you call this none (Inaudible) words they used there.

    Those would constitute an unfair labor practice under the circumstances before it was found, wasn’t it?

    J. L. Shaver, Sr.:

    Well in the sense that they are preempted under the — under the —

    Hugo L. Black:

    I know.

    I’m not talking about preemption.

    I’m just wondering if it’s not an unfair labor practice.

    Maybe you might, maybe the state might still enjoin or do you argue that they would not — it’s an unfair labor practice under the federal (Voice Overlap) —

    J. L. Shaver, Sr.:

    I — I say the unfair labor practice — I say that they’re entitled to be enjoined under this case and these other case and your cases because its intimidation and force and violence and mass picketing and threatening, that’s what I’ll say about it and it’s not protected.

    Hugo L. Black:

    Was that mass picketing out — it might be (Inaudible) but usually that wouldn’t be quite figured out to be a mass —

    J. L. Shaver, Sr.:

    Well, it would —

    Hugo L. Black:

    There’s quite a difference however in the locality.

    Felix Frankfurter:

    A small town for those who would love it, is that right?

    Hugo L. Black:

    That’s right.

    It was a street one but 18 feet wide and everyday they’d come across there in the street.

    I’d like to say just two things, you’ve been gracious to me and that is about this breach of peace.

    Hugo L. Black:

    Now, we’ve got an Arkansas statute down there that is narrowly withdrawn as Chaplinsky and it’s a narrowly drawn statute and it just says that — that this is a crime in Arkansas.

    It’s been on the statute long time called Peace and Tranquility Law.

    “If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in common acceptation is calculated to arouse to anger the person about or to whom it is spoken and addressed, or to cause a breach of the peace or shall be deemed guilty of a breach of peace.

    Now, the courts have — gone ahead and say, that this statute not only recognize the right of a person to not only to be safe but to feel safe and as the case cited 207 Ark. with reference to insulting a girl, wanting to pay of $10, the Court held that was a breach of the peace.

    Has they ever been enjoined for —

    J. L. Shaver, Sr.:

    No, sir.

    Hugo L. Black:

    — securing its people to the crowd and —

    J. L. Shaver, Sr.:

    No, sir.

    This was (Voice Overlap) this was a prosecution —

    Hugo L. Black:

    Is this the first case of injunction for that kind of a statute, for that kind of conduct?

    J. L. Shaver, Sr.:

    I haven’t any — I haven’t to any cases in Arkansas where they have been enjoined.

    I can’t cite you to any.

    I can cite these cases worthy of finding that this law — these different things that you say to people constitute to breach of the peace.

    And I say in this case that they admitted they set them to insult them.

    So there’s no dispute in the question of fact except where it was calculated to drive them to anger.

    And then I’d like to bring about one of other thing and that’s about this Chaplinsky case, New Hampshire about (Inaudible) and fighting words and libelous and insulting words.

    They in their brief, they tried to limit that case to causing out the man they’d arrested.

    Now, this — this Cantwell case and the Chaplinsky case is really some philosophy in both those cases.

    In other words, in one of them they say, the very utterance of which causes as not protected.

    In other words, there’s nothing social, no information conveyed by insults and fighting words and they’re not protected by the Fourteenth Amendment.

    (Inaudible)

    J. L. Shaver, Sr.:

    Yes, sir.

    You mean in my brief?

    (Inaudible)

    J. L. Shaver, Sr.:

    Yes, sir.

    William J. Brennan, Jr.:

    Mr. Shaver, did I understand you, as I understand that this restraint now means that Amalgamated Clothing Workers of America at least and the individual named defendants and all their agents and employees and all sympathizers are permanently restrained forever from ever attempting to organize this plant at least through the means of picketing on any other State?

    J. L. Shaver, Sr.:

    No, sir.

    William J. Brennan, Jr.:

    It doesn’t mean that?

    J. L. Shaver, Sr.:

    No.

    That — that was raised in this Rubber Duck case, I — they argue there it was forever in this — the procedure as it’s pointed out in my — in our brief there that the procedure is to file a motion.

    William J. Brennan, Jr.:

    Well that said, in other words, they have to get relieved from the obligation —

    J. L. Shaver, Sr.:

    Yes.

    William J. Brennan, Jr.:

    — of these restraints by a special proceeding where, back in the original Chancery Court?

    J. L. Shaver, Sr.:

    Yes, sir.

    It’s set out — it set out in those cases that I —

    William J. Brennan, Jr.:

    Yes, I recall.

    Don’t repeat them, I remember them.

    J. L. Shaver, Sr.:

    Those three cases in the brief it —

    William J. Brennan, Jr.:

    Well, there (Voice Overlap) —

    J. L. Shaver, Sr.:

    They just filed a motion.

    William J. Brennan, Jr.:

    Can you tell us shortly, are there any special criteria which have to be satisfied in order to get relief from this kind of restraint?

    J. L. Shaver, Sr.:

    As I understand it, it’s the lower court, you come in and say now, we are not doing this and we won’t — the court modified the injunction and he has the way we will picket and I understand that’s the way — that’s our procedure down there.

    William J. Brennan, Jr.:

    Well, now.

    Let’s say, over two years have elapsed now since this was issued.

    J. L. Shaver, Sr.:

    Yes, sir.

    William J. Brennan, Jr.:

    Is there any time limit within which it may come in?

    J. L. Shaver, Sr.:

    No, sir.

    Not in my opinion.

    I think they could come in tomorrow.

    William J. Brennan, Jr.:

    And they have to show what?

    J. L. Shaver, Sr.:

    They would have to show that they were — were not going to intimidate and puncture tires and throw snakes and in other words, they will go and they’d come in and show how they are going to picket and now the — it would be my — it’s my understanding of the law that the Court sets out the manner in which they will picket.

    William J. Brennan, Jr.:

    In other words, the Court then in this instance probably would say, we will allow you as long as you have not more than X number before such and such a case and as long as they do not conduct themselves except on this manner or except as they carry no signs except signs so and so were — is that the way it will be done?

    J. L. Shaver, Sr.:

    Yes, sir.

    That’s the way I understand it to be, yes, sir.

    Hugo L. Black:

    How — how can they meet at their headquarters, under your injunction, could they meet in the headquarters under your injunction?

    J. L. Shaver, Sr.:

    They didn’t have it rented for 30 days.

    In other words, they — they rented that lot for 30 days so they — I guess your question is moot on that because they just leased it for 30 days.

    Hugo L. Black:

    I — I don’t know where it was.

    I just noticed that they — they were enjoined congregating and (Voice Overlap) —

    J. L. Shaver, Sr.:

    And loitering.

    Hugo L. Black:

    Loitering or congregating at their headquarters?

    J. L. Shaver, Sr.:

    At — at that lot.

    They have leased a lot right in front of this Rainfair for 30 days and paid $10 for the lease.

    Felix Frankfurter:

    But could they tomorrow if — if you’ll excuse me, if I show ignorance about that kind of a small town, though I envy you and practically in a city in which you know everybody.

    Could they tomorrow hire a building and meet there not at this lot?

    J. L. Shaver, Sr.:

    Oh, sure.

    Felix Frankfurter:

    And not be endangered being within this injunction?

    J. L. Shaver, Sr.:

    Sure.

    If it’s eminent to this lot right across from —

    Hugo L. Black:

    — where is it limited in the — in the order?

    I didn’t find it.

    I was a little curious for about it.

    J. L. Shaver, Sr.:

    It’s limited.

    As I understand it, Mr. Justice, it’s limited to that specific lot.

    Hugo L. Black:

    Well, it says on a property used as the union’s headquarters and you say that the evidence show that the headquarters that they probably use —

    J. L. Shaver, Sr.:

    At that lot.

    Hugo L. Black:

    — is this lot, is that (Voice Overlap) —

    J. L. Shaver, Sr.:

    That’s what it means.

    Yes, sir, that one lot there across the plant that they put the tent on and the benches and the — and their seat.

    Hugo L. Black:

    I don’t believe I have ever seen one before whether they were enjoined congregating at their headquarters.

    Did you run up on the meaning on —

    J. L. Shaver, Sr.:

    No, sir.

    But this is a rather unusual place.

    They — they rented this right across from the lot and that’s where all the trouble started with coming out into the road and persistently doing these things from this piece of property.

    Felix Frankfurter:

    And may I ask you.

    I didn’t wholly hear the colloquy between you and my Brother Brennan.

    Certainly, if tomorrow another factory opens at Wynne, this injunction would have no relation to (Voice Overlap).

    J. L. Shaver, Sr.:

    That’s right.

    Felix Frankfurter:

    He asked you about the perpetuity of the order in relation to Rainfair.

    Now, what I want to know is, if two years from now, Rainfair grows, (Inaudible) it will be able to grow maybe you don’t want it to.

    Felix Frankfurter:

    I’m not a great believer in the growth if that’s (Inaudible).

    Will this injunction still be outstanding?

    J. L. Shaver, Sr.:

    As I understand it, this injunction would be outstanding against these people until it —

    Felix Frankfurter:

    Plus the — plus the amount — plus the union.

    J. L. Shaver, Sr.:

    That’s what I mean.

    The union until they make a motion to modify.

    Felix Frankfurter:

    Now, when they make a motion to modify, they would in effect have to prove or satisfy the Court that they’re good boys now, wouldn’t they?

    J. L. Shaver, Sr.:

    That’s right.

    Felix Frankfurter:

    And what kind of a burden does that impose on?

    J. L. Shaver, Sr.:

    I don’t think it would impose a very heavy burden.

    I don’t personally —

    Felix Frankfurter:

    Well, if there’s any —

    J. L. Shaver, Sr.:

    We’ve got to find a judge down there and —

    Felix Frankfurter:

    Well, is there anything in — in the procedure in your — either statute or Arkansas (Inaudible) as you’d call them that indicates the reasonable reliance that they wouldn’t have to carry an excessive burden — a heavy burden.

    J. L. Shaver, Sr.:

    I think the matter is lift up to the — as I understand, is lift up to the lower court under these cases I’ve cited.

    I think if they’d come in and say we want a picket and we’re not going to threaten and —

    Felix Frankfurter:

    No more snakes.

    J. L. Shaver, Sr.:

    No more snakes.

    He doesn’t like that.

    I think the Court would regulate like they do in the other cases and tell them they won’t picket.

    They picket for two weeks there and there weren’t anything done about it.

    Thank you very much.

    Earl Warren:

    Mr. Shaver.

    Mr. Isaacson.

    William J. Isaacson:

    The Court please.

    I’m sure there is inadvertent on Mr. Shaver’s part to indicate that there was anything — for example the mass picketing here.

    There is no such finding in this record on the court below, none whatsoever.

    There was no mass picketing here of any kind.

    People walk in and out with no blockage or interference or interest here.

    Now, I want to turn for a moment to the — to the Meadowmoor point that seven of the justices raised in the question of Mr. Shaver here.

    William J. Isaacson:

    I think that it was explained from the — some of the questions were put that there’s a complete understanding as to what Meadowmoor meant.

    Meadowmoor meant that where you have violence in such frequency in depth and the character that you had in Meadowmoor is there, such intensity that you had in Meadowmoor that if you have a course of trust into the future so that any beholder of a picket line knowing of the past would look upon that picket line as — as a arm with a club, so to speak, or arm with a bomb which is true in Meadowmoor then under those circumstances — under those circumstances you can prevent — prohibit all picketing including peaceful picketing because there is no such thing.

    It’s been transmuted into something quite different than peaceful picketing.

    This is not the situation here.

    Here, as a matter of fact, the very image was not sufficient to deter or persuade anyone not to enter.

    Certainly, the after image if there is an after image here of the speech.

    This is what you have to find.

    There is an after image of the speech, certainly wasn’t sufficient.

    Now, turning for a moment to the violence, so-called acts of violence which the court below apparently considered to be violent.

    I just wanted to point out that these several incidents, as Mr. Shaver has indicated, two of them took place during the earlier proceeding there and which is not — which is not the subject matter of the complaint and certainly cannot be a — a matter concerning which a — a Court can utilize the support for an injunction This was a matter at the prior proceeding there.

    Now, as to one of the matters there, I think, Mr. Shaver press inadvertently didn’t elaborate upon and that was the so-called threat.

    It’s only the threat in the record to personal safety of any of these — any person and that I’m sure its inadvertence in his part when he failed to mention the plant manager, that he’s doing the threats addressed about wiping up the walk with the sending back to Wisconsin.

    That was made by a woman and that Mr. Bonady, the plant manager said in the record personally, “I don’t think she’s big enough to do it unless she’s going to have an awful lot of help.”

    This doesn’t sound to me — this doesn’t make any seriousness or take it with any degree of seriousness.

    As to the — as to the incident concerning which Justice Whittaker asked me, that is the snake, I think it’s plain the from the testimony that — that Mr. Shaver himself read into the record there, at great length that there is no connection whatsoever.

    None whatsoever in the Supreme Court of Arkansas doesn’t find the connection between the snake incident and strikers.

    Hugo L. Black:

    Where was the plant?

    How close to the city was it?

    William J. Isaacson:

    If can turn to my fellow counsel (Voice Overlap) —

    Hugo L. Black:

    (Inaudible)

    Your Honor?

    Hugo L. Black:

    I just wonder if the snakes were located around that yard.

    It didn’t (Voice Overlap) —

    William J. Isaacson:

    I just — I will now — will now come back to the — to the question here which is — which as I see it and it would appear from the question.

    The only question we — before this Court really at this point is the right of strikers to stand on their property by the way and the Court makes this point on their property for the most part.

    There are some indications there may have been on the street on occasion that the court makes no real point of that.

    It would appear that to the most part, they stood on their property on strike headquarters and call the strike breakers scab.

    I would like to say as to that, particularly relating it to questions of Mr. Justice Black and that is this.

    That this is the precisely the kind of question on which the expertise of the Labor Board must be brought into.

    This is the kind of question in which the Board has passed several times now and has been referred to these cases in our brief and has found this kind of activity to be protected.

    William J. Isaacson:

    We’re not only talking now about the preemption in the terms of Garner.

    We were talking about an interference with protected activity under Section 7 and Section 13 of the National Labor Relations Act.

    I submit to this Court where you have this kind of a question, certainly, it should in the first instance as this Court has said in countless preemption cases and all.

    There’d be some 16 since Garner by this Court and countless of those cases, this Court has said in the first instance where you have this kind of a question, where you cannot be sure as to whether it is a protected activity or a proscribed activity that it must go to the Labor Board in the first instance.

    And I say to you that if it is a proscribed activity, then certainly as Mr. Justice Black indicated, then it certainly a matter for the Labor Board and this is not the kind of situation which was meant in the Kohler case which came up here under the name of UAW against Wisconsin Employment Relations Board at the last term or the term preceding the last term and that is this is not the kind of situation where you have violence.

    This is not the kind of situation where you have overt threat or violence.

    It’s not the kind of situation where you have mass picketing where you have this kind of post question, I say it must in the first instance go to the Labor Board to determine whether it’s protected or whether it’s proscribed.

    And let me just make the final observation, had it gone to the Labor Board how different — how different the circumstance would be now.

    Had it gone to the Labor Board, the Labor Board would have done probably what the Wisconsin Labor Relations Board did if it found — if it found this to be appropriate activity.

    It would have — it would have limited its injunction.

    If you recall in the Kohler case, when it came before this Court, in the Kohler case, the Wisconsin Labor Relations Board despite the fact that they were dealing with threats, despite the fact they were dealing with mass picketing, despite the kind of rather intensive conduct that they had — misconduct that they had there.

    Despite all of that there is a limited — a limited cease and desist order that — that issue certainly in this particular proceeding, I am certain that this Labor Board would issue a cease and desist order of a limited nature applying only to the calling of the term scab if they found it to be an unfair labor practice.

    And one final observation, if I may, and that is that this Labor Board would certainly have considered the fact in coming to the question that whether or not strikers, standing as a minority here in this small community in Arkansas whether or not strikers have the right to utter this kind of thing, they would have considered the provocation and unfair labor practices on the part of the company.

    This is what this Court had reference to in the (Inaudible) case when they made this point so very carefully there that there is something quite different when it comes before the Labor Board which has the power to go in and look into all of the surrounding circumstances and break the barrier of its expertise upon the entire Labor Relations controversy not piecemeal.

    I say that the Board would have under those circumstances look into the entire controversy and into the unfair labor practices which were I believe they would have found on the record here.

    Hugo L. Black:

    Does the record show that the company was subject to the act?

    William J. Isaacson:

    There’s no question about that.

    Some denied — it’s submitted in the brief of the — it’s submitted in the brief of — of Mr. Shaver and Mr. Brennan asked a question of — of counsel, I will — for the company, I — we’ll refer him to pages 45 and 46 of the record, Mr. Youngdahl’s testimony and also through the answer on the part of the — of the union in the trial court decision.