Bernard Dunau: May it please the Court. I said yesterday that extension of market operating hours means extension of working hours and that when you negotiate the one, you negotiate the other and I want to continue and say a few words about that. Except for a single proposal at the break up of negotiations in 1961, every proposal that was ever made for self-service operation was a proposal to have men at work at night. This was explicit in the proposals made either by Jewel Tea or by the other employers. The negotiations went to trying to persuade the union to have the men work at night and there were two parts, two essential elements of that negotiation. One, a flexible workday, that meant if you were going to have men working after 6 o'clock, how do you schedule them in for work. Do you schedule them in at nine to work through nine? Do you schedule them in at noon to work through nine? Do you schedule them in at ten to work through eight? The flexible workday was one of the major issues discussed between the parties and that issue went to whether -- not to whether the men worked, to when the men would be scheduled into work after 6 o'clock. The employer's object was to get as they called it a completely flexible workday so that for the men who would work after 6 o'clock, you would schedule them in for work at noon, they would work there eight straight time hour shifts through nine and you would have no premium paid unless for the work after six, unless you negotiate a premium pay as such. And so the second element of the negotiation of the extension of marketing hours was how much if anything you would pay for the work after 6 o'clock and the proposals by the employers range from straight time which meant no premium for work after six to $0.25 an hour which meant $0.75 premium for working three hours after 6 o'clock to a halftime premium. These people therefore when they were negotiating with each other, were talking about men at work, how much you would pay for having the men at work and how you would schedule them in for work and the District Court's ultimate finding with respect to the import of the negotiations was this, at page 672. “Lifting the restriction on marketing hours would mean a return to longer hours and night work. This is evident from the face of the employer proposals which included the flexible day, night hours and wage premiums to sell night work and from the practices of the trade, particularly in plaintiff stores where night sales of fresh meat were authorized.” The district judge was referring to the fact that outside the Chicago area with virtually no exceptions when a meat department operated after 6 pm, men were at work. The Court of Appeals did not blink the fact that extension of marketing hours meant extension of working hours. They met that problem in this way. They said the self-protective interest of the unions was limited to the number of hours a day a man could be required to work. Could you have them work more than eight hours, nine hours, ten hours, but the Court of Appeals said, the unions have no self-protective interest in what hours of the day or what days of the week they would work. You could work them after 6 o'clock so long as you work them only eight hours. So if you started them at noon and work through nine, that was eight hours, you weren't being required to work more than eight, that was the end of your interest. You could work them on Sundays because the objection there would go to what day of the week and that the Court of Appeals said was the employer's business. In short, what the Court of Appeals said was, because the hours of the day and the days of the week that men would work, also controlled the hours that the business can be open, what hours the business shall be open, the Court of Appeals said, is the merchant's exclusive managerial prerogative, he determines that and when he determines it, he also determines when the men shall come in to work. The practical import is very clear. We know what happens outside the Chicago area where there is no limitation on market operating hours. Jewel operates 33 stores outside the Chicago area. In all but one, the market is open after 6 pm. In two stores, the market is open to 11 o'clock at night. In eight stores, the market is open six nights in a week, including Saturday night until 9 o'clock. In seven stores, the markets are open on Sunday and what the Court of Appeals is telling us is that we have no self-protective interest in bargaining about not working until 11 o'clock at night and not working on Saturdays until 9 o'clock and not working on Sundays. On the fourth --
Tom C. Clark: Is there additional wages on overtime or you know, if there is?
Bernard Dunau: I believe there is a premium paid for the work after 6 o'clock. I don't recall now and I'm not sure the record shows the basis of it but I believe there is a premium paid.
Tom C. Clark: There really does because the union said anything to get more work?
Bernard Dunau: Only if one agrees that the men want to work after night. If the men don't want to work after night, there is no benefit to working after night. The choice that the men have made is whether they're going to work after 6 o'clock and the choice they have made is that they don't want to work after 6 o'clock.
Tom C. Clark: Those are just [Inaudible] to be here and I marketed myself, I know a little about it, it's self-service. I go in and the butch -- I never see the butcher. I go along the counter and pick up this pig and chicken. Those [Inaudible] butcher's off we'll say after eight hours and the butchers pick themselves we'll say from nine to six or whatever the hours are and then they just leave the meat there on the counter and the customer comes up and selects whatever he wants, goes on about his business.
Bernard Dunau: If I may, I will come to that in just one moment because this is Jewel's argument.
Tom C. Clark: Take your time --
Bernard Dunau: I just want to finish on this point first.
Tom C. Clark: Sure.
Bernard Dunau: Now I think Your Honor will find though when your wife goes shopping, she is not just picking up that meat at the counter. She is ringing a little bell when she doesn't find what she wants and there's a butcher poking his head through a little cubby hole saying what can I do for you ma'am and she says, I want some kind of a rump roast that's not here and she gets it that way.
Tom C. Clark: Well, I have rung those bells and they don't open many doors.[Laughter]
Bernard Dunau: That's one of the problems with so-called self-service meat operation without employees.
Tom C. Clark: I thought that was just one of the French -- you know these window dressings that they put the [Inaudible][Attempt to Laughter]
Bernard Dunau: I'll come to that Your Honor. In our view, the Court of Appeals faced this squarely and said the men had to work at night because the merchant wanted to stay open at night. Unfortunately for that position, under the National Labor Relations Act, the unions have an explicit right to bargain about hours of employment. Their position on hours of employment can very well conflict with the merchant's position as to when he wants the store open. When the merchant's choice is to when he wants to stay open conflicts with the man's choice as to whether you want to work and you settle it at the bargaining table and if you don't settle it there, to put it bluntly, you settle it on the picket line but you don't settle it in a courtroom as a violation of the antitrust laws. Now it's quite clear, Jewel does not want to face to defend its judgment that it got in the Court of Appeals on the basis that the men have to work after 6 o'clock just because the merchant wants to stay open after six and so Jewel says this. “We are perfectly willing to operate a self-service meat department without anybody on duty after 6 o'clock. That satisfies our wish to be open for business and your wish not to work.” I said yesterday that the big problem they have with that contention is that the finding of fact is just the other way that you cannot operate a self-service meat department after 6 pm without employees on duty.
Arthur J. Goldberg: Assuming you can, would that make any difference [Inaudible]
Bernard Dunau: It does not. Ultimately Your Honor, this certainly the record shows that our position is taken reasonably and in good faith and we can bargain on the basis of our view that you cannot operate a self-service meat department after 6 pm, and when we bargain in good faith reasonably on that basis, we are not violating any antitrust laws just because somebody else says, you can do it differently than we think it can be said. So ultimately, I don't think it makes a difference but we --
Arthur J. Goldberg: Even though they maybe right?
Bernard Dunau: Even though they maybe right, but in this case, we don't even have that hurdle because based on the findings in this record, they are not right. First, we have been in this meat business --
Potter Stewart: If you're -- if the hours of the labor are not involved of the members of your union as would be the case if the employer is right, then why is that anybody else's decision except the employers. If you're right then he can't do it. He can't keep it open.
Bernard Dunau: Because --
Potter Stewart: But if he's right, he can do it without impinging in any way on the rights of your –-
Bernard Dunau: Because the decision as to whether the employer is right or we are right, is not a decision which has to be made in a courtroom by a judge. That's a decision which the laws have committed to the merchant and the union at a bargaining table.
Potter Stewart: Well, I -- you're -- that's correct if this is a working condition and it is a working condition only if it in some way affects the terms of employment of your members, but if he's right, it doesn't affect the terms of employment beyond that.
Bernard Dunau: But we can without violating the antitrust laws, take the position that he is wrong and I suppose perhaps, one of the fundamental questions in this case is when with respect to a matter which touches on working conditions depending on which way the fact is, I suppose one of the fundamental questions is, can you go to a District Court to have a district judge tell you whether one or the other side is right or is this question as to whether a particular matter does or does not affect working conditions, something which is confined to the bargaining table and left to the autonomy of the party.
Byron R. White: But if all you have to do to insulate yourself in antitrust law is to make a claim that this is a matter relating to the working conditions of this case and all the -- all other cases are over.
Bernard Dunau: No sir.
Byron R. White: Because all you say is we have to make a claim that this is a -- related to working condition.
Bernard Dunau: I didn't say we could make any old silly claim. I said this record shows --
Byron R. White: How silly does it have to be?
Bernard Dunau: I beg your pardon?
Byron R. White: How silly does it have to be and who says it's silly, a judge does.
Bernard Dunau: But all the judge can say is that we are taking a position that the moon is made of green cheese and when we take a position that the moon is made of green cheese, nobody in his right mind has to say we are talking about wages when we're talking about price control.
Byron R. White: Well then a good faith claim then insulates them -- any union from the antitrust law.
Bernard Dunau: A good faith claim that what the union is bargaining for is wages, hours and working conditions, puts it on the bargaining table and outside the courtroom, yes sir.
Byron R. White: And a good faith claim insulates it from any kind of court inquiry.
Bernard Dunau: It does not -- court inquiry. It does not insulate it from the inquiry by the Labor Board as to whether in fact it is a mandatory bargaining subject. Before the Labor Board, we would have to demonstrate not simply our good faith, but what in fact is the effect of what we claim on the actual condition of work. What we are saying is that so far as the antitrust laws are concerned, if the union is making a good faith claim that is the end of it.
Byron R. White: Well if someone that is could get you before the Labor Board --
Bernard Dunau: I beg your pardon.
Byron R. White: If someone could get you before the Labor Board.
Bernard Dunau: Jewel can get us before the Labor Board on any contract negotiation. We will insist anytime they propose night operations, we will insist you are not going to get it if it's a non-mandatory bargaining subject, they've got a classic refusal to bargain.
Speaker: Has the Board ever had this question before it?
Bernard Dunau: Market operating hours as such, not that I know of Your Honor, no sir. They have of course through the government's brief in this case express their opinion that it is a mandatory bargaining subject, but I don't believe they've had it in their litigated case.
Hugo L. Black: [Inaudible] can force the employer to do with reference to the time he runs his shift. How far does it go? Can they say you can -- you must operate only between 10 o'clock in the morning and five in the afternoon?
Bernard Dunau: Your Honor --
Hugo L. Black: I mean the whole business.
Bernard Dunau: The whole business, I'm sorry, by the whole business, do you mean the retail, the grocery department? We have no concern about the grocery --
Hugo L. Black: I know you do not here but that's why I was asking you. Suppose all the employees wanted to change course, get together and say, now, we want you to run all this at 5 o'clock until three in the afternoon to bargain on it. Could you do that? Is that a subject? That's what I thought was the reach of your argument.
Bernard Dunau: Yes sir, that is the reach of it. I mean the reach of it is, that if our men, we'll take the absurd case, don't want to work more than from 9 o'clock until noon, it's not a violation of the antitrust laws. It maybe the craziest thing under the sun and I can't imagine it happening but it's not remediable under the antitrust laws.
Arthur J. Goldberg: [Inaudible]
Bernard Dunau: Work schedule --
Arthur J. Goldberg: [Inaudible]
Bernard Dunau: Work scheduling is an everyday subject of collective bargaining. The only thing unique, if it's unique in this case is that we call it market operating hours. We shut the market down because you can -- only by shutting the market down, can you be sure of two things, one that you will not work after nine -- after six and two that your work will not be done by anybody else.
Tom C. Clark: Can you shut the whole market down?
Bernard Dunau: Just the meat department Your Honor.
Tom C. Clark: Why do you leave the chickens in there?
Bernard Dunau: I beg your pardon?
Tom C. Clark: Why do you leave the chickens and sausages and things like that --
Bernard Dunau: Because we have been bargaining over the years with these employers. In 55 or 56, they made a proposition and they said look, you are not allowing us to sell frozen fresh poultry from our self-service cases after 6 o'clock. The customer can get it at Papa and Mama Stores in which you have nobody. They can get it in delicate stores, what sense does it make to cut our throats by having us lose this business and the union said, okay, you've made a good case on it, we'll accept it.
Tom C. Clark: Well, that looks like it isn't a competition then, if that what's happened?
Bernard Dunau: Sir, I cannot say that human beings negotiating with each other are going to have things come out, controlled by a beautiful syllogism and everything will line up to one perfect solution. If the objection to market operating hours is that we allow the sale of poultry after 6 pm, we can remedy that. We'll eliminate the sale of poultry after 6 pm, that's not what these people want. They want the market open for the sale of fresh meat, but if the objection is the sale of poultry, we'll get rid of that.
Tom C. Clark: Well, you say though it's not possible to do it on meat, how is it possible to do it on chicken?
Bernard Dunau: What happens when you do it on chickens Your Honor?
Tom C. Clark: Yes.
Bernard Dunau: They cheat.
Tom C. Clark: I'm not asking that, you just say, you can't do it on meat.
Bernard Dunau: I know. I said it's not possible to do it without the employees and I insist it's not possible to do it without employees. They are using grocery clerks and managers and assistant managers to do the work.
Tom C. Clark: Is there anything in the record on that?
Bernard Dunau: Yes sir, yes sir. In fact, I don't have to have the record on this, I've got findings. At page 667, even -- at the bottom of the page, even in self service departments are extensively operated without employees on duty after 6 pm, there was evidence that requisite customer services in connection with meat sales were performed by grocery clerks. In the same vein, defendants had used evidence that in the sale of delicate pleasant items which could be made after 6 pm from self-service cases under the contract, practically always during the time that the market was open, the manager or other employees would be rearranging and restocking the cases, that was the evidence on what happens after 6 pm supposedly without employees on duty. My time is up. I want to only point out one additional thing. Jewel says here, it can operate a self-service meat department without 6 pm. This is its policy with respect to the operation of self-service meat departments. Its policy is, I read from page 52 of our brief. It states as a must that there be a man on the counter at all times, Jewel requires a butcher at the counter to create a friendly and courteous atmosphere between the meat cutters and the customer, to keep the counter straight, perform any services which the customer might request and fill special requests that the customer might want which you can't find in the counter. Lastly, this is what we say since we are biased, we have an interest, we had two experts testify both operated self-service meat departments one operated 12 meat departments, one operated 11 in Chicago in 1957, both wanted self-service meat operation after 6 o'clock. Both testified you could not satisfactorily operate a meat department service or self-service after 6 o'clock without employees on duty.
Hugo L. Black: Mr. Solicitor General.
Archibald Cox: Mr. Justice Black and may it please the Court. The government's interest in this case stems chiefly from two sources. The first it involves the interplay between two major federal regulatory statutes, which government agencies are charged with administering and second, the decision at least might the issues certainly do have a major impact upon the course of collective bargaining in the United States and it's for those two reasons that we are here. We are primarily concerned with the legal questions and not with the record. I may say also by way of introduction that as we see this case, it's rarely a very simple case provided that it is decided in terms of the issues necessarily presented in this case. It's sort of a safe island if I may put it this way in the midst of swamp which is very foggy and very treacherous. Because I think the broader the proposition that it is advanced, the more difficult its implications and the greater the complexity. We submit first that the National Labor Relations Board does not have primary jurisdiction over cases alleging a violation of Sherman Act by a contract or combination between employers and a labor union. And that there was therefore no impediment to the courts below going ahead in deciding the case on the merits and no impediment here. Our reasons are essentially very simple. First, we think that Congress has made it plain that there is no general rule that every question of interpretation of the National Labor Relations Act must go to the National Labor Relation Board. Two illustrations come immediately to mind. One is Section 303 of the Labor Management Relations Act, which as this Court held in the Juneau Spruce case gives one injured by certain union unfair labor practices, a right to sue for damages and questions of interpretation as well as questions of fact come up in those cases and the Courts are charged with the deciding it. Second, suits for breach of contract under Section 301 often involve issues that might go before the National Labor Relations Board and sometimes involved and I think will involve with increasing frequency, questions of interpretation of the National Labor Relations Act. I think one case, I might take the time to use by way of illustration in which an employer sued contending that the failure to give certain notices in accordance with Section 8(d) of the National Labor Relations Act, automatically extended the contract. So he still had a right to enforce it and the union contended that, that was not the effect of the Section 8(d). The Court to decide the case necessarily or almost necessarily had to become involved in the interpretation of Section 8(d) and one can think of and find in the reports a number of other cases of that kind. So certainly the fact that a question of interpreting some provision of the National Labor Relations Act maybe involved is not alone enough to show that there must be primary jurisdiction. Neither does that necessarily show the reverse.
Arthur J. Goldberg: [Inaudible]
Archibald Cox: That involved -- yes, it involved the trucking industry in some way. I'd forgotten that, but I expect it's very close to the point. Our second reason for thinking that there cannot be primary jurisdiction here is that the National Labor Relations Act simply does provide machinery for resolving this kind of case in most instances. It certainly doesn't provide satisfactory machinery and that is true for three reasons. First, it would seem to me that the overwhelming number of combinations of employers or contracts between employers and unions that might be alleged to violate the Sherman Act, would not involve any unfair labor practice and there is therefore no way that anybody including the United States could possibly take them before the National Labor Relations Board. If I may refer to the Pennington case argued yesterday as an example, except for the little tail bit having to do with the protective wage clause, I don't see anyway unless Mr. Roundtree could have taken that case before the National Labor Relations Board. There was no claim of any unfair labor practice by anyone. In this instance, the union's insistence upon this clause might perhaps have been challenged as a refusal to bargain, but suppose --
Arthur J. Goldberg: Pennington might have known [Inaudible]
Archibald Cox: Yes, but there might have -- but it -- let me put it this way. There are many instances in which that couldn't come up and this might be one. If Jewel Tea had been willing to go along with what is said to be a conspiracy and I can't believe that the Congress intended or that the primary jurisdiction doctrine holds that when there happens to be some little incident of the case that could be challenged as a refusal to bargain collectively, then the whole matter in that situation and that situation alone goes before the Labor Board and the case which is 95% the same doesn't involve that little incident, may always go straight to Court. Now there are two other confirmatory things which seem to us part of this also they're not quite as important as what I said. One is it that there's a six-month statute limitation in the National Labor Relations Act. That's an awfully short time for anyone to bring suit for an alleged conspiracy to violate the Sherman Act. Indeed, I'm afraid it's an impossible short time, unless you expect the Department of Justice to get around to bring a suit for alleged violation of the Sherman Act or I hate to say it. Again, another strong wind, after all, the person injured by such an alleged conspiracy has no right to have his case determined by the Board, all he has a right to do is to submit it to the general counsel. I don't think that alone would be enough. There are instances where that's a complete barred of relief, but I think it tends to support in conjunction with the other things what we are saying. I turn then to the other major part of my argument, the merits. We urge that upon the findings of the District Court which we think is supported by the evidence, the so-called marketing-hours clause does not violate Section 1 of the Sherman Act. Our argument has two steps. First, although we say that the restriction upon marketing hours does suppress commercial competition among employers which we acknowledge is a fact, it also yields direct benefits to employees represented by the union in hours of work and what I will call job protection in not having their work done by someone else and that this is what I call a direct benefit. You get the more convenient hour or you get the work as distinguished from what I would I call the consequential benefit that flow in directly often to union members from a suppression of competition among the employers. A price fixing agreement among employers may yield real -- very real benefits to the union because the employers to put it colloquially if they get fat, the unions could get higher wages from them and if they are lien then the unions find it pretty hard to squeeze anymore wages from them, but that I describe as an indirect benefit. It comes from the suppression of competition not as the direct consequence of the thing that you are bargaining about. We say first that this is such a contract where the suppression of competition yields the direct benefit and second, that such a contract does not violate the Sherman Act. Now the first issue as to what are the facts here is one that I really shouldn't concern myself about because those who tried the case and have studied the record obviously are more familiar with it, but I would point out that the District Court did find that this restriction on marketing hours was imposed at arms length bargaining and was fashioned exclusively by unions to serve their own interest. How long and what hours members shall work? What work they shall do and what pay obviously meaning what premiums for overtime they shall receive.
William O. Douglas: And it's that finding that the Court of Appeals disagreed with?
Archibald Cox: Well I didn't think that the Court of Appeals did disagree with it Your Honor.
William O. Douglas: Well they say at the bottom of page 693, we cannot agree after reading what you said. This raises to me the question that we have in effect two sets of finding, one by the District Court and one by the Court of Appeals.
Archibald Cox: Well I would --
William O. Douglas: Which one should we adopt?
Archibald Cox: Well I would -- as I say, I think anything, any observations I make on this point are, I should acknowledge are not based on a complete study of the record. It would -- it did seem to us that this finding was supported by at least four bits of evidence. First, there was the testimony of Kelly, the Union Business Act at R-603 and 604, which is unequivocally to the effect that you couldn't operate at night without having meat cutters on duty or without somebody else doing their work. There was an operator of supermarkets who testified to that effect that R-415, 460. There was also the evidence of the witness Sam Teller at R-493 and 495 who described his experience in the store, where in Indiana and said that he did get served at night during a time when no employees were supposed to be serving. He apparently had better luck than Justice Clark was pushing about. Finally, there was the course of the negotiations themselves. The district judge found and I think he was quite right in finding, that the proposal for night work without employees, without meat cutters on duty was not interjected until the final moments of the negotiation when they were breaking up. Now on that, it said at page 15 of the respondent's brief, the Solicitor General's brief misreading the overturned discussion of the District Court, proceeds upon the erroneous assumption that Jewel proposed night operations without butchers being on duty only on November 16, 1961 as negotiations were breaking up. However, the undisputed record as to 1961 is that on September 29, the union asked what price the employers would pay for night operations, R-596. I turn to R-596 and it said there that the union made certain -- that the employer made certain proposals, we want to know what kind of night operation we wanted -- that they wanted. We wanted to know about female help, it sounds to me as if somebody was going to be on duty. We wanted to know about the ratios for female help. We want to know what price they would pay for night operation. All of that sounds to me, price is frequently used of course when you mean wage. I wasn't there but this at best as ambiguous. It certainly isn't evidence that a proposal was made for night work without employees on that occasion. Then we're told on November 2, the industry as a whole asked what the union position would be on night sales for three nights a week. If it was assumed that all provisions of a contract had been settled except marketing -- at market operating hours, R-535. There, we do read of a rather specific proposal made by the employers, asking about certain assumptions, what the union's position was. One of them was, the industry reached agreement to limit the sale of fresh meat to three nights a week, Monday, Thursday and Friday and no Saturdays, that's two in there. Well now this again, it seems to me in view of the fact that always in the past, this had involved employees working at night, almost surely meant the same thing. It didn't mean night operations with no employees. But if I'm wrong about that's not just assumption in this instance, because if we look at R-454 -- 4 -- 554, R-554, that's explained in more detail. Can you tell in some detail, this was the same employer with -- what Kelly said in response to your proposal. What proposal do you refer to? Well, when you asked him to make that assumption that all the conditions of the contract were agreed to and the industry has came in with an offer of three nights -- three nights of night operation. There wasn't a great deal of discussion. The purpose of asking those questions was to find out, do you want one journeyman on duty or did he require journeyman on duty at all. Do you want one, two or more? This wasn't night operation with a guarantee that no one would be there. Then turning over on the brief, we read further negotiations were held on November 3 and 13. On November 13, Jewel made the November 2, 1961 proposal on behalf of itself alone, R-538 and Exhibit 10. If you look at Exhibit 10, you will see that it was an entirely different proposal and if you look at R-538, you will find that the witness was asked referring to November 13, did you make this offer to the union group on that date? Answer, no sir, we did not. Now I maybe -- maybe they did and maybe they didn't, but surely the district judge was not on this in taking Jewel Tea's witness at his own word, that they did not make the offer on that date. And indeed, the same witness testified over on R-542 and R-543 that the time he gave it was on November 16, in answer to Mr. Juneau's question just above the middle of the page and over on R-543, he said this was at the conclusion of a very long harassing day and we were breaking up at the time it was given. I submit that that is certainly evidence enough to support the district judge's finding on this point and that our assumption was not unfounded as it said.
William O. Douglas: Was it [Inaudible]
Archibald Cox: Not so far as I can see.
William O. Douglas: Where is Exhibit 10?
Archibald Cox: Exhibit 10 is in the second volume. I'd say in the form of a letter from Jewel Tea and its terms are quite different from the terms of those other proposals and the essential difference is the difference between night work with employees and night work without employees. I would make this one other comment on this.
Potter Stewart: There was some awareness of antitrust dangers wasn't there during the --?
Archibald Cox: One of these suites apparently had been started before those last negotiations if I understand the record correct.
Potter Stewart: This one is the top one [Inaudible]
Archibald Cox: There was some awareness of it. Unquestionably there was awareness. I would make one other --
Tom C. Clark: One point it said that withdraw the suit is that this suit?
Archibald Cox: I'm not sure if it's this suit or some other suit. Mr. Christensen tells me this suit. I would make one other observation on this part which does not have to do precisely with the evidence as part of the finding. And while I -- the matter did get under my skin enough to look at the record on those points again, I don't want to assert more knowledge than I have and obviously these gentlemen know more about the record as does Mr. Christensen. The observation I would make is simply this. It seems to me that the issue before the District Court and the issue in a sense here is not whether Jewel Tea can run a store, selling meat at night without any employees handling the meat. The finding is this is a charge of conspiracy between employers and the union and the finding is that the employers and the union conceived this problem in terms that you either had employees working at night or you didn't have those marketing hours. And the question I think is whether they were acting honestly with a substantial basis and whether they were entitled to bargain about the problem and the terms in which they seriously and substantially saw it without being charged with conspiracy rather than what the absolute truth is because surely the freedom to bargain about wages and other direct benefits to employees allows the parties some freedom to appraise the facts and to act on the basis of their appraisal of the fact, provided that it's done seriously, in good faith with some kind of a substantial basis, now I come --
Hugo L. Black: Would that mean that any time, the company and the union are charged with violating the antitrust law? You'd have to submit to the jury in each case the good faith of what they were doing? In reference to the good faith of -- whether they were trying to agree with themselves or the employees?
Archibald Cox: I would think that -- I think that I will answer that in the course of my argument on the law in part Justice Black, but there are certain issues where I think that, that would have to be, certain cases where I think that would have to be submitted to the jury. Now I do want to suggest one distinction which was not entirely clear in some of the colloquy during Mr. Dunau's argument. What we're talking about here is not what a union can do alone. That would be Norris-LaGuardia Act case. We're talking here of course about contracts and combinations, that the two are not necessarily the same. Now I come -- I'm afraid somewhat belatedly to the legal issue. As we see it, we start from this premise which is not directly applicable to the case but it's a necessary foundation. And that is that a group of employers and a union do not violate Section 1 of the Sherman Act when they enter into an agreement or call it a combination or conspiracy, when they enter into an agreement upon wages or hours of employment and other direct benefits to the union which have no effect upon competition and the producer's market, the selling market, except as a consequence of eliminating differences in wage cost as a source of competition.
Potter Stewart: This category, wages, hours -- is this coterminous with the category of what is a subject of compulsory bargaining under the Act?
Archibald Cox: No sir and you'll note that my proposition is for the moment quite narrow. I'm speaking for the moment only of the case in which the sole impact on commercial competition as Justice Stone called it, or competition in the selling market as I call it, is indirect because of the standardization of labor cost. That's the case of every wage agreement. There are very marked consequences, but they're indirect consequences of the standardization of labor cost and we say that those effects on competition are not enough to invalidate bargaining about wages or about hours or other things that enter into labor cost. We think this follows -- is supported by two considerations. First, we think as Justice Stone reasoned in the Apex case that this is simply not the kind of contract in restraint of trade that the Sherman Act referred to in using a word of art, that it was talking about restrictions on market practices and that wages, the labor market does not come under that count. Second, we think that the national policy from the Clayton Act, down through a whole host of enactments including the Walsh-Healey Act and the Davis-Bacon Act, makes it plain that it is not national policy to encourage competition based on differences in labor standards. Indeed, I'll go a step further and say that the kind of collective bargaining, we have had for half a century, but increasingly since 1935, simply could not take place if effects on the marketing of goods stemming from the standardization of labor cost were enough to constitute a violation of the Sherman Act. Every national union and surely our collective bargaining has been founded on national union, looks to the standardization of labor cost. Now I want to note in passing one qualification and one corollary to that proposition. The qualification is that if it is shown that the agreement on wages, the combination for wages was entered into because the union was seeking to aid an independent conspiracy of employers to suppress competition and that is shown by other evidence, admissions if you will or something like that, that then we would make that an exception to our proposition. The Philadelphia Photo Engravers case cited in my brief seems a satisfactory example and we would also say as a corollary to the proposition that simply the fact that the union and the employers knew that a sharp increase in wages, coupled with an effort to extend it through the industry would result in the elimination of marginal firms is not enough to deprive them of the immunity privilege, not enough to put it under the Sherman Act. After all, to say otherwise would simply mean that people who bargain without considering the economic effect are not under the Sherman Act, that people who consider all the economic consequences would violate the Sherman Act. And we think to bring a case within the exception that I stated, that there must be some other evidence than that of the negotiations and the agreement on the subject of wages. Now that is not quite this case and I simply stated that proposition as the foundation. This case differs, because this agreement I think indisputably does restrain commercial competition. It does eliminate competition based on differences in hours and if this were an agreement between the employers alone, the government's view would be that it violated Section 1 of the Sherman Act, if nothing more than it appears here. Nevertheless, we think that what you have on the finding is a situation in which again Justice Stewart direct benefits to the employees and I wouldn't agree as you know that the phrase of the National Labor Relations Act was limited to direct benefits, that you must bargain with that, that where direct benefits to the employee are one side of the coin and the restriction on commercial competition is the other side of the coin and the two are as inseparably linked as we take them to be on the findings and as the two sides of the coin are then the principle that I stated a moment ago extends to the case and my reasons are much the same as in the first instant. The first reason that it's not the kind of contract isn't applicable, but the second reason I think, the policy of the labor laws is applicable, because there are a considerable number, we've cited them in our brief, of things that are traditionally are parts of collective bargaining and the essence of the collective bargaining, which both yield direct benefits to the employees and also involve a restriction on commercial competition. The so-called featherbedding is --
Byron R. White: What about the agreements not to deal, the employer agreeing not to deal with non-union establishment, you put that in this category don't you?
Archibald Cox: No, I don't think I do. I would --
Byron R. White: I thought your brief did.
Archibald Cox: Well I'm afraid -- really your phrase could mean so many things that I'm not sure of what you have in mind about it.
Byron R. White: Any way you want it to mean, but you --
Archibald Cox: Well if you mean that an employer agrees not to deal with any non-union establishments, even so the non-union establishment is paying higher wages than the union establishment and there is a no benefit to the employees in terms of wages, I would say quite clearly. In first place it isn't a direct benefit as stated by proposition. In the second place it's arguable that there's no benefit at all except by suppressing competition among the employers and we have the major difference between us and the AFL-CIO and the petitioners here is our insistence that for present purposes, anything laid down in favor of the petitioners here should be limited, we think to an instance where there are direct benefits to the employees on whose behalf the union is bargaining. Now there are a number of cases where we differ very sharply, I'm not sure what they all are and quite frankly regard this as very difficult and treacherous deal, but I can think of three cases where there are marked differences between our view and the union's view. I think perhaps your case comes fairly close to --
Byron R. White: How about the case where the union is trying to protect itself from the substandard conditions and -- but the agreement nevertheless is not leveled -- well, take it -- take the agreement is in the Carpenter's case.
Archibald Cox: Well I don't understand that the agreement in the Carpenter's case was limited to substandard condition. In the second place, I don't think that this problem of the secondary boycott in terms of the antitrust laws is a very real problem today because it is taken care of by the National Labor Relations Act. The real problems if I might take just a minute --
Byron R. White: But if the question still remains whether the Labor Relations Act is going to provide the only remedy.
Archibald Cox: Well it -- one could sue for damages. If I remember it correctly, it isn't limited to filing unfair labor practice charges.I suppose there is a question in theory whether there are triple damages. I would apply Justice White, the same test that we have stated. If what the union, to take -- put one example, if the union says “We object to your buying parts rather than making them through your own employees I would say that a promise not to subcontract was a direct benefit because it provides no jobs.” If the union, instead of doing that, asks only for a clause that would protect its wages, asked the employer to promise that he will not subcontract parts that might be made in his shop to any other contractor who might make lower wage cost, I would say that, that too was a direct benefit to the employees. If you want to take a case like Carpenter's case or the Allen Bradley case where the union was trying to do much more than that, where it was trying to protect its wages by keeping all goods out of the area so that the employers would get fat or if it is bargaining on two levels, the installation people and the production people, then it would seem to me that the benefit maybe only indirect and it would fall in the category of cases that we think the Court should avoid.
Hugo L. Black: [Inaudible] isn't a rather treacherous criterion to try to divide all this on the basis of what's direct and indirect.
Archibald Cox: Well I agree that those have been very difficult phrases in the law on many occasions. It might -- I think that one might well conclude that, that was not a satisfactory standard, but if I might take time to put a couple of examples, it does seem to me that the Court would do well not to announce a broader rule in a case that doesn't require it. And let me put Your Honor if I may, a few -- just a couple of illustrations.
Hugo L. Black: My trouble with it is, would it be the announcement of a rule that anybody understands?
Archibald Cox: I would suppose so.
Hugo L. Black: Maybe it's the only rule.
Archibald Cox: I would suppose so. I think that all these lines get close and as I say, I don't offer this as a -- sure all that can be applied willingly, but there is a marked difference. Let's suppose for example that the union construction laborers on highway construction find that it's getting increasingly difficult to negotiate any wage increases in Ohio, on highway construction, because there is competitive bidding among the contractors, cutting their bids so low that they aren't able to pay any wage increase. So the union goes to them and says, we're going to strike unless you fellows enter into a scheme whereby who will bid is allocated for each job or they might propose a geographical allocation as is sometimes said to have happened among the roofing unit, that case while this does stem from the union's self-interest, and while it maybe arguable whether the Hutcheson doctrine doesn't immunize it, it seems to me that if the employers capitulate and agree with the union in that case, where the benefit to the union comes from the fact of having suppressed competition among employers and thereby enables them later to get something more, is a distinguishable case from this kind. Indeed, I would say that, that kind of case differs from the kind of cases that we see here in three important respects. First, this sort of thing isn't traditionally the heart of collective bargaining. It isn't essential to effective collective bargaining and this sort of restraint would clearly be illegal if it were imposed by an employer.
Potter Stewart: In both cases, both the case before us and your hypothetical case, that if conducted, that if agreed to among employers, each would be a violation of the antitrust law?
Archibald Cox: That's true.
Potter Stewart: The present case and your hypothetical case. Your hypothetical case maybe a little more --
Archibald Cox: Yes, that's true, that difference is true, that factor is true.
Potter Stewart: Right.
Archibald Cox: I think I overstated it there. But it does seem that it's an effect on the market, on the public, is quite different in degree at least in this kind of case, in terms of the kind of danger it offers and we would think that the Court could reserve judgment on that kind of a case without prejudicing one way or the other and still reverse the judgment in this case.
Hugo L. Black: I think we can afford maybe a few minutes to the other side and I want to ask you one other thing. It has not been discussed there that it relates to the part of the Court's opinion at page 694 of the record where the Court referred to the fact that the hour, the day when a business is to be opened to accommodate the demands of customers, the judgment of the owner of the business, it's not a condition of employment contrary to the District Court's finding, I don't -- I'm not sure that's a question of finding, but as long as all rights of employees are recognized and duly observed by the employer including the number of hours or days that anyone shall be required to work, any agreement by a labor union acting in concert with business competitors, designed to interfere with the operation of a retail business is a violation of the Act. I'm asking that for this reason. We finally get back here before us to the interpretation of the Act as to how far it was intended to take away from the owner of the business his right to running it. What other lines, now before of course the line was, before the Act that either the -- that the employer could run his business in anyway he saw fit that wasn't prohibited by law. Now it's argued and perhaps rightly that he's not -- he doesn't have to look to the statute. Congress has delegated that business to the agreements between the labor union and the employer. And so we have a very hard line of distinction to see how much is left to the employer. What do you say about the distinctions owned by the Court here?
Archibald Cox: Well I think the distinction drawn -- I think I have to draw two conclusions from that sentence. First, I think that the -- that this in a way tends to confirm the view that the Court of Appeals did not overrule the factual findings of the District Court because you will note that the Court of Appeals here spoke of including the number of hours per day which anyone shall be required to work. He did not speak of the hours in the day when one should be required to work and that there is no suggestion that the employer is bound to respect the employees' interests in what hour -- in what hours of the day he works in. Second I would say that the national --
Potter Stewart: That's a --
Archibald Cox: Perhaps --
Potter Stewart: That's a difference of definition I suppose as to what is a working condition. In other words, according to Mr. Dunau's argument and I think the ultimate conclusion, the ultimate thrust of your argument is that for instance railroad employees could say, now we're just not going to run any trains at night and that would be subject to compulsory bargaining and that --
Archibald Cox: Oh I think yes.
Potter Stewart: And if --
Archibald Cox: Of course, yes.
Potter Stewart: And if the railroads thought gee, that's fine, that helps us and from the point of view of our product market, terrifically and you'll jump at that and agree to it that ,that would -- would not and could not be a violation of the antitrust law.
Archibald Cox: That's correct.
Hugo L. Black: Anybody else do it.
Potter Stewart: Right.
Hugo L. Black: We're going to have a law as to when your business will operate. The point I was asking was, they seem to draw a distinction here, the reference to an employees' right to insist that I'll work this long and no longer, I'll work at this place and nowhere else, I'll work this way and no other way. They draw a line that says the owner has a right to say how his business shall operate if he can get --
Archibald Cox: That's true, but of course how the business shall operate and what the employees do, what their conditions are, is involved in every question, what wage you pay has something to do with how the business shall operate. Now the steel companies say that raising wages prevents them from setting aside sufficient reserves to replace their plant. What premium you get if you work at night or whether you get double time if you work on Sundays, all has a bearing on how the business will operate and when it will be opened and I think --
Hugo L. Black: But that's --
Archibald Cox: In our view unequivocally --
Hugo L. Black: The line drawn here is -- it maybe a wrong one, I don't say it's right, I don't even suggest it maybe right, but the line they attempt to draw is, that the employee in control of himself, I'm not going to work any longer if there is anything else, but that's it. Employer has a right to decide how he'll run his business, if he can run it through somebody else. They can't make him move from one place to another. They can't make him shut it up at a certain time of night.
Archibald Cox: Well, I think --
Hugo L. Black: That's their line they thought it best.
Archibald Cox: Yes, but I think the point that comes in here which perhaps I missed in first answering your question and the point that would come in, in the railroad case, is that the employees not only are interested in at what time of day they work, they are interested in whether they have work to do and if the employer sells all his meat at night when they don't want to work, there won't be any work for them to do in the daytime. So they have to do it.
Potter Stewart: [Inaudible] is not right. The work is preparing the meat, cutting out the carcass.
Archibald Cox: Well, and putting it on the -- the particular work we're talking about here is when all the hamburger is gone, putting some more on the shelves. And my observation is that there are never very much hamburger on the shelves as it is – there is some there, but it has to be replenished all the time.
Hugo L. Black: Whose shelf is that? Whose shelve?
Archibald Cox: It's the Safeway shelves in my case Mr. Justice Black.[Laughter] You are quite right it isn't the selling and I used -- spoke the term to -- spoke too broadly, but there is a problem here. It's not just the one problem when the employees work. It is also a problem of job protection of the work jurisdiction and of course this problem between the clerk -- the meat cutters is also -- follow these things now is an ancient and troublesome problem.
Potter Stewart: Of course that is --
Archibald Cox: That's something that these people are very sensitive and jealous.
Potter Stewart: And they have it in their agreement, that only the employees --
Archibald Cox: Well, I think another thing Justice Stewart that almost anyone who follows these things would tell you that these promises and agreements are not available out of protection. In fact, you will find a great many employers who make inconsistent promises on this subject and there's a devil to enforce. So I really don't think the theoretical protection of the promise can fairly be regarded as the end of that promise.
George B. Christensen: May it please the Court. Having heard our position described by three different sets of lawyers and variously described, I'm delighted of an opportunity of stating it myself. Now I would be pretty timid expressing any difference as to the law with the Solicitor General because his excellence in this field is well known. I don't feel that timidity however in discussing the record, because I doubt that the Solicitor General would have gotten into this case, had he been as fully familiar with it last summer as he was at this time for what he seeks to do. As the discussion has demonstrated during the last 15 minutes is to build a tremendous inverted pyramid of the law in all scopes and fields upon a very narrow point and he isn't quite sure where that point lies. And I think I can demonstrate that. He says this morning that the -- this clause restricting market operating hours which is conceded to be an unreasonable restraint on trade, is a direct benefit to labor and therefore exempt and the direct benefit that he now finds is that it prevents others from doing the work.
Potter Stewart: It's only one of two. The other direct benefit is that these -- members of this union simply do not want to work at night, none of them.
George B. Christensen: They got to --
Potter Stewart: The union doesn't want any employees to work at night.
George B. Christensen: Let's clear one thing out of this case once and for all. An examination of these contracts discloses the most elaborate provisions as to hours butchers shall work as to premium pay they shall get, as to schedules, it provides for over time that may work -- may run after the marketing hours, may start ahead of the marketing hours. Everything they possibly could have they have without this restraint and there isn't any way that, that can be changed except by their agreement.
Potter Stewart: The agreement say -- the other -- these are the provisions of the agreement to which you refer, what do they say about night work, if anything?
George B. Christensen: Oh, they can work at such hours. They're quoted -- you'll find contract is set forth, they're too long. They can work -- they can start work at any time after 8 o'clock in the morning and work as late at night as the operator wishes them to work, provided they're paid their premium pay that applies to the particular time.
Potter Stewart: Where does that appear in the record?
George B. Christensen: That will appear in both Exhibits 1 and 2 and the whole matter is set forth Record 49, 49 of Volume 1 Your Honor and there isn't one faint shred of doubt about that. There are working hours, there are two contracts attached to the complaint. One is the so-called service contract and the other the self-service and the one that I am referring to at 49 is the self-service.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: Except what?
Arthur J. Goldberg: [Inaudible]
George B. Christensen: Basic workday. Record -- go over -- follow over to Section 4, Justice Goldberg and 50, Section 4, overtime. Overtime, that overtime rates maybe worked behind locked doors from 8:00 am to 9:00 am after 6:00 pm, and after eight hours in any one day at the employer's discretion.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: Yes, but so far as hours of work are concerned.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: No, or any other arrangement obviously that they want to have as hours they can work. These hours of work were satisfactory too. They can have other things. We have to bargain on that, there is no issue on that in this case. Now the second benefit that these people are supposed to get -- well the first one is, is that it prevents others from doing the work and it's been repeatedly pointed out here. It's presumed that these contracts are enforceable. Now the Solicitor General says, oh well, they're violative. Well now he says that the District Court found, that the Court of Appeals found it contrary and let me tell you what the record is on that and this I think I can speak with some authority on. Of course, the chief business agent from the union got up and said, “Well, we find that someone is always moving delicatessen items around.” The fact of the matter is that we have been operating in Indiana in an intensely congested area for several years, most of the stores, six nights a week until 9 o'clock and some of them until 11, with butchers on duty only for two nights. So that there is ample opportunity for cheating if cheating goes on. In their entire history, they couldn't come up with a single bit of evidence surely and so finally in the middle of the trial, they sent out a disgruntled former employee that we found engaging in unsatisfactory work practices. He was adulterating hamburger and he got a black mark on his record. If you want to read something when you get time you read about this prized witness Mr. Sander and his confession. That's Exhibit 10, I've lost -- that's not Exhibit 10, that's -- just one second, because you might as well get some enjoyment out of the case as I have worked hard on it. In any event, I don't find it right at the moment. He went to three stores in that Indiana area, on a night when no butchers were on duty, he went there for the expressed purpose of finding what was going on. At the first store, 1755 and again at 6900 Indianapolis, the second store “Did you spy around and see if you could get someone to give you some service?” “Yes, I did,” “and you were unable?” “That is correct.” He got to the third store and he found not two grocery clerks. I read from record 499. He got to the third store and you find out on record 495 and he didn't get two grocery clerks. He got a meat apprentice who was is in the back room working on meat and he got this fellow to bring out the rump roast and he induced the kid to show it to him and then he put it down somewhere else and walked off. The fact of the matter is that there is not a single bit of evidence, objective evidence in this record of any bona fide customer in Illinois, Indiana or elsewhere ever having been given this special service. And this is all under contracts that have elaborate grievance procedure in them and I am sure the members of this Court know that if there had been any substantial breach, these aggressive unions would have had us in arbitration after arbitration. The last time I was before this Court was in a case that involved grievances over $2.19, the Sinclair-Atkinson thing was spawned out of such a thing. Now it is just idiotic to contend that these contracts aren't enforceable or that there is any amount of cheating. The real temptation for cheating is in the situation today when people can't get meat and when store manager would like to break his arm if he could to satisfy a customer who can get no meat at all. Now it very well maybe the district that they offered evidence that it's not a satisfactory way to operate a store. It very well maybe that we would prefer if we could to have the services of butchers at night, but the day has not yet come when if we want to run what they think is an unsatisfactory store, we can't run it that way. Our customers don't object. The evidence proves that out in Indiana that the evening sale of meat with respect to the sale of groceries is at the same ratio as the day time sale when butchers are on duty. But whether that be right or wrong, so long as we don't make people work when they don't want and they can bargain and say we won't work past 6 o'clock at night they can't restraint trade to the extent of saying, “You, Mr. Merchant cannot allow the public to come in the store and pick up that meat on which we have fully completed our task.” Now the issue is a very simple one. There is no question here of anyone taking anyone else's work. There is no question here of compelling men to work when they don't want to. You can, of course, given an exaggerated reading to the Court of Appeals' opinion, but you will observe the Court of Appeals rendered two opinions in this case and in the second opinion, it went back and it re-adapted the first one and in the first opinion, it described these contracts. It described the restraining provision and it then went on and I think the line is significant, after describing the restraining provision, which prevents the public from buying from self-service cases at night. It says that the remaining provisions of the collective bargaining contract concern hours, wages and conditions of employment and it is precisely that thought that runs through both opinions and it is precisely that line that we think governs the decision that should be made upon this appeal. The Court did overturn the District Court's findings of fact or example, and it was required to. When you have a record of successful operations without butchers on duty in Indiana and without cheating except this instance of entrapment or a Court to say that it isn't practical to operate a store that way is obviously contrary to the record, even though the Court was entitled, should be entitled to tell a merchant how to run the stores. It's none of the Court's business. If we want to run an unsatisfactory store, we do so at the risk of customer disapproval. The Court of Appeals pointed out in its first opinion whether one form of merchandising or the other is the best will be determined by the customer. That is the precise object as I understand it. The Sherman Act is aimed at is to let competition find the level it should be at, let the public determine from the various acts of the competitors what should be done. Now, the Court said that we can set operating hours, but it soften that language and you will find in the second opinion on the same page as Mr. Justice Black read from. It said furnishing of suitable hours is the prerogative of the management. We can furnish suitable hours. We have that right. No one can tell us or should be able to tell us what hours we furnish. We can't make the men work. We can't make them work in the daytime if they don't want to. We must secure their agreement to that. But they say, “You can't let anyone pick up that meat on which we have fully performed our task.” When they step over there they are not engaging in fixing a term or a condition of employment at all. The labor exemption isn't a matter to be determined by theories or by what we may think in this courtroom is a desirable state of the law. The Sherman Act forbids all contracts, all restraints of trade and the exemption from it can come only in two places. It must come either from the Clayton Act or it must come from Norris-LaGuardia and either way, you read, any way you read those statutes it's limited to terms and conditions of employment. One says terms and conditions and the other says, terms or conditions and unless you can come within that language is a matter of statutory construction, then is this admitted restraint of trade necessarily falls under the Sherman Act. I think this case is an atypical case. This type of retailing operation is different from a great many retailing operations. Of course it's far different from the operation of a railroad where the railroad can't run at all if there isn't someone up there running the machinery. And to attempt to expand from these peculiar and rather narrow facts into the entire field of antitrust law, gets us into these perplexing problems.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: I think it's a rather analogous situation and you're getting something close to stand by musicians and that kind of thing.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: I don't think they could say you've got to shutdown. They might insist on a little featherbedding within and without the law and I'd rather not commit myself on that without thinking it out, but as to saying, you've to shut that factory down, I would think that's the same -- roughly the same situation here as I now understand the problem.
Tom C. Clark: I didn't know you had mechanization here.
George B. Christensen: We don't have mechanization.
Tom C. Clark: I thought --
George B. Christensen: The --
Tom C. Clark: The sale after hours on the self-help would be prepared by the union, wouldn't it?
George B. Christensen: Certainly, certainly.
Tom C. Clark: Then --
George B. Christensen: This is not inaccurate analogy, but it's -- and I don't think that Mr. Justice Goldberg asserted that it was along -- but it's a problem along the same lines. We don't have any mechanization here. This meat --
Tom C. Clark: [Inaudible] make up during the daytime with additional help but – the use of knife, it wouldn't harm anything, would it?
George B. Christensen: Wouldn't harm them at all, wouldn't harm them at all, make more work for them. The workload of any butcher of course is a bargainable matter. There's no issue on that. If we are working the men too hard, they can easily say a man shall not be required -- and I don't know enough about the business to say whether you express it in pounds or tons or carcasses, but a workload is a bargainable matter and that can be taken care of. So that you have here a rather unique situation in which any legitimate objective of the union can be achieved by the contracts through ordinary labor provisions, in fact were achieved in these contracts without this restraint and all that is at issue is whether some poor shopper like Justice Clark can go in one of our stores in Chicago at night and get himself a piece of meat. It's -- now, you can.
Tom C. Clark: Well, I guess I don't get your question, I don't get it.[Laughter]
Arthur J. Goldberg: [Inaudible]
George B. Christensen: Well, of course I don't regard that as out of the case.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: Well, I think the Court of Appeals opinion talks about that for me. The Court of Appeals opinion says that there is ample evidence in here and they reversed the case and said there should be a trial as to associate it. There's an expressed finding on it. Now --
Arthur J. Goldberg: [Inaudible]
George B. Christensen: It puts him right in the middle of it. It puts him right in the middle of it and for this reason. What you were saying is that a union can always insist that the least efficient producer be kept in business because his employees might lose their job there and have to work elsewhere, and there have been --
Byron R. White: [Inaudible]
George B. Christensen: That's correct.
Byron R. White: [Inaudible]
George B. Christensen: Correct.
Byron R. White: [Inaudible]
George B. Christensen: Correct. And I think that follows very, very simply. People overlook the breadth of the Norris-LaGuardia Act. It's conceded here as I understand it that if this restraint was issued, entered into by a businessman alone, the Solicitor General makes it very clear that this would be an obvious violation of the antitrust laws. Now, if we did it alone, we would be in trouble. We would be subject to criminal indictment, whatever penalties -- other penalties should apply. It's said that Norris-LaGuardia takes the unions out of this, it is the contention Mr. Dunau is making, but let me read Norris-LaGuardia, Section 13. When used in this Act, a case shall be held to involve or to grow out of a dispute when the case involves persons who are engaged in the same industry or have direct or indirect interest therein, or who are members of the same or an affiliated organization of employers, whether such dispute is between one or more employers or associations of employers and one or more employers or associations of employers. I did not misspeak.
Byron R. White: Well, let me --
George B. Christensen: Now --
Byron R. White: Would you suggest there was a violation of antitrust law that one store, one employer probably [Inaudible]
George B. Christensen: Oh! No, I wouldn't think that. He doesn't have to.
Byron R. White: [Inaudible] all stores --
George B. Christensen: Yeah.
Byron R. White: -- independently and the employer and the union in each case raises [Inaudible]
George B. Christensen: Yes, I would then.
Byron R. White: You would what?
George B. Christensen: I would think there was a violation.
Byron R. White: There was what?
George B. Christensen: There would be.
Byron R. White: Would not be?
George B. Christensen: Would be.
Byron R. White: There would be if the union doesn't bargain. Let's start with the first store. If the union agrees with the first store and the employer agreed not [Inaudible] what about that?
George B. Christensen: I don't think that, that would be. You wouldn't have any impact upon --
Byron R. White: Well, then he goes to the second store and --
George B. Christensen: I don't know precisely where you would draw the line, but you can't go very far. The minute you get two competitors, I think for the second store, you would do it. Now --
Byron R. White: The two competitors don't have to agree with each other --
George B. Christensen: Oh, I understand, and they don't have to. They take conscious parallel action they are in trouble. Now, you only have part of the facts in your employer, but the union must have some purpose in doing it as we have seen if the rest of the contract is like this one. It's not --
Byron R. White: [Inaudible]
George B. Christensen: It's not --
Byron R. White: If the first store, the employer agreed to close its sale but the union agreed to -- not to work for any other stores that wouldn't [Inaudible] agreement. The union is promised to insist with every other employer.
George B. Christensen: Oh! Then I think you'd be right back in violation of the law as you are now, as I understand your question.
Byron R. White: So it's really the multi-employer bargaining that gets you into trouble.
George B. Christensen: I think so. You aren't going to be engaged -- one employer can do as he wishes to, but it's -- and --
Byron R. White: And agree with -- and one employer can agree with one union as -- as it will hold this together as far as [Inaudible]
George B. Christensen: Oh! I would think so, unless they had -- the only store in the town, I'd want to know a lot more facts before I'd want to be bound hand and foot --
Byron R. White: [Inaudible]
George B. Christensen: Well, that's when the case comes to trouble just as you have a lot of antitrust violations when everyone is happy with them. They never come to light and nothing is done with it. It doesn't mean that -- it doesn't have very much to do with whether it's legal arrangement or illegal.
Byron R. White: Was there any way that you [Inaudible] to avoid [Inaudible] So he had gotten out of the union?
George B. Christensen: We tried. They said we were unethical.
Byron R. White: You just didn't want to go, didn't you?
George B. Christensen: What?
Byron R. White: You just didn't want to go, that's all.
George B. Christensen: Oh, that isn't so.
Byron R. White: [Inaudible]
George B. Christensen: Well, we withdrew from the unit by -- to this extent of offering different terms and conditions and insisting on a vote on it. We didn't to that extent we weren't a part of this group that was bargaining together. You'll find in the record, and I think that I quoted that in our brief.
Byron R. White: But why didn't you go on and say [Inaudible]
George B. Christensen: Well no wait because we would have had -- we would have been struck here. This is a -- foot of page 17 of our brief, it's in the white cover. We tried to give him a proposition to stay open. We insisted that it go to a vote. They took a vote, voted to strike, and the union took the position, the union and the industry would conform on the patterns to hours of competition. Once the agreement was reached between the majority, yes sir, this is Mr. Kelly testifying, the union man, once the agreement was reached between the majority, yes sir, that is correct.
Byron R. White: And how could that hurt you?
George B. Christensen: It hurt us to this extent, that the rest of the industry was willing to go along with this.
Byron R. White: But you weren't?
George B. Christensen: We weren't.
Byron R. White: So why did you [Inaudible]
George B. Christensen: Because we were faced then with the problem of a strike. If we are correct in this view, that strike would have been an illegal strike. We have in our store --
Byron R. White: [Inaudible] illegal strike. You have already admitted that one employer and one union can agree and bargain on whether to keep the shop open.
George B. Christensen: This would have been a strike. This would have been a strike to compel us to keep our shop closed.
Byron R. White: Exactly.
George B. Christensen: Now --
Byron R. White: But your union, I gather, can do --
George B. Christensen: But -- oh well, Mr. Justice, you are now -- you are now adding a good many facts to your equation. This isn't the question I answered some time ago. This isn't one employer. This is one employer who was trying to break out of this combine and is being held in it by the others saying, “We'll keep our stores open and furnish the people food and meat and drink.” And this one operator will be in effect in a so-called whipsaw strike, he has on his shelves or in transit at any time roughly $1 million worth of produce. The damages of such a strike are astronomical and as opposed to the being held in, and suffering the illegal strike, we said we can't pay the price. Now --
Byron R. White: Suppose the union were to say that you objected to this mulch-employee [Inaudible]
George B. Christensen: No, not under the circumstances you describe, because the -- that is -- you again have the fact of the pressure of the uniformity, the anti-competitive matter. And no more than we could make it with other businessmen could we under those circumstances make this kind of a deal such as you were describing under the facts as I get them from you hypothetical. We wanted an opportunity to deal with it. We wanted an opportunity but we never could get it. I don't see -- well, it seems to us that the minute that where you have a contract that fixes wages and hours, and you say we will reinforce it by a restraint of trade, the question is answered. Now this Court has always held that in the line of cases we've pointed out, you permit a deviation in the Oliver case for example where they were subcontracting out to get around contractor and it didn't concern direct terms. You say that, that is not a violation.
Byron R. White: So do I understand Mr. Christensen that if this did concern direct terms wages or hours of employment, you would concede that under the laws that have been developed, this could not be a violation.
George B. Christensen: We would concede that. Yes sir. We would concede.
Potter Stewart: I suppose this --
George B. Christensen: Unless, unless --
Potter Stewart: So far as the parties are concerned, this is just a factual dispute because of course the other side said says that it does concern direct term.
George B. Christensen: Well, they say it does, but I think that one is answered pretty quickly because the hours of work are exhaustibly and authoritatively fixed by this contract.
Potter Stewart: Well, I understand your position and I think you heard your brothers on the other side disagree with you and it's a factual controversy.
George B. Christensen: I was not much impressed with the disagreement.[Laughter]
Arthur J. Goldberg: Well Mr. Christensen, could you at some convenient time [Inaudible]
George B. Christensen: Well, I would think on those facts Justice Goldberg, they could not. Now if you showed some malice on our part or an attempt to drive a particular man out of business and I think we're in a little different position than it was described in -- I don't think it's quite analogous to what I understand of Pennington and I'm not sure I understand it.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: I would think that they could not. Now the fact of the matter is here that the union officers testified that if the one store stayed open, the other would have to -- that's to aid the entrepreneurs of those stores and that is a subject of where we run afoul of the antitrust laws. The public is entitled to a difference in shopping hours if it's an element of competition, then it's certainly is.
Potter Stewart: Well I think everybody here agrees that if this had been an agreement only among employers, no union in the picture, that this would be clearly a violation of the antitrust law. So I don't believe anybody disagrees with that and I don't see -- or maybe Mr. Dunau perhaps does. The Solicitor General certainly agrees with you on that, that if this were only an employer agreement or conspiracy, call it what you will, it would be violating the antitrust law. The Solicitor General agrees with you on that.
George B. Christensen: Now, you can say of course that this has -- this restraint has an effect upon employment, nearly anything that goes on in the business does. You've got to draw the line somewhere. Now there would be no stopping and the minute you leave off, the part and terms and conditions of employment and start adding commercial restraints on top of it when you already fixed the terms and the conditions of employment, it seems to me you obviously are trespassing in plain, raw commercial restraints.
Arthur J. Goldberg: [Inaudible]
George B. Christensen: Well I would think probably not with this still being a somewhat religious country and I think the rule or reason would come in, but you have a finding here.
Potter Stewart: It only violates the antitrust laws, but the First Amendment as well.[Laughter]
George B. Christensen: I don't want to get involved in that. What you have here Mr. Justice Goldberg, an express finding that this is an unreasonable restraint, trade and certiorari wasn't granted on that subject. That issue is closed. Well, if it pleases the Court, I have a few minutes time left, but I don't think there's anything I can add to the discussion that has gone on in the last two days. What we have to say is better said in our brief. I do want to say that we, in no way, agree with Mr. Dunau's representation of the facts and we most emphatically do not agree with his theory that the Court of Appeals didn't tip the District Court's findings upside down. It did so repeatedly. Thank you.
Bernard Dunau: May I have a few moments Your Honor? There was one aspect of this case which I did not have an opportunity to talk about in my opening argument and I think we ought to put all this out on the table where everybody can see it. On the assumption contrary, to --
Hugo L. Black: [Inaudible]
Bernard Dunau: Yes Sir.
Hugo L. Black: [Inaudible]
Bernard Dunau: Thank you very much sir. On the assumption that you can in truth operate a self-service meat department after 6 o'clock without employees on duty, we still have two labor objections to doing it, One is workload. We don't want that store operating after 6 pm. even without employees on duty for two reasons. We have to increase our workload before 6 pm in order to have the meats to sell and when the shambles are through after these three hours of unattended operations, we have to clean up that mess the next morning, that's workload.
Potter Stewart: But you can negotiate with precise application or workload. You can negotiate --
Bernard Dunau: And we can take --
Potter Stewart: Premium pay or the amount of workload per hour or anything you want to.
Bernard Dunau: And we can take the position too and it is the position we do take, we can negotiate it, but there's a long difference between having the power to negotiate and succeeding in your negotiation, we think we might fail and that what I'll wind up with is an increase in workload by the same complement of people and we do not wish to risk that, that's one. Two and this is very important, we talk as if the only type of market that the union has to be concerned with is a self-service meat department operation. There are two types of markets in the Chicago area. They are self-service markets and service markets and everybody agrees you cannot operate a service market without employees. This is not a conflict between independence and chains because chains operate service markets and independents operates self-service markets. But it puts us in this hopeless dilemma, either if you operate self-service markets after 6 pm, you either also operate service markets after 6 pm, which means the men must work or you keep your service market closed after 6 pm, which means that the service market loses trade to the self-service market and with the loss of trade comes the loss of employment and work. We do not think the antitrust laws impale us on the horns of the dilemma that we must either give up our right not to work at night, or give up all the butchers who work in the service departments, the work and the jobs they get if the market stays closed. This turns right into Mr. Justice Goldberg's hypothetical. Suppose we insisted because we didn't want to work at night that the service market stayed closed, aren't we then confronted with the identical antitrust action but on the other foot, now their complaint is we are suppressing competition between service and self-service markets by not providing the men to work after 6 pm. So whichever way we turn on this hypothesis, we are in trouble.
Potter Stewart: I don't quite see that argument. I mean it's claimed that you violated the antitrust laws here in this case and I don't see anything inconsistent between that claim and the claim that if you didn't allow your men to work after 6 o'clock, it would also violate the --
Bernard Dunau: There's nothing inconsistent between the two frames Your Honor.
Potter Stewart: Well I don't see why it's two horns of a dilemma. It seems to me it's all in the same directions.
Bernard Dunau: The horns of the dilemma are this, in terms of a practical bargaining situation on what you do at the bargaining table, you are faced with two alternatives. If you say you can operate your self-service departments without employees, the service departments then say, “How do we operate after 6 pm?” You say, “Well you can operate.” That's one solution. If you operate, the men work at night and that's the end of the labor objective of no night work or, you can say, “Sorry, you can't operate without butchers. So you stay closed.” That means we lose work of service butchers whose work and jobs to the self-service markets. Those are the horns of the dilemma that we do not think where the antitrust laws require us to be impaled on. Lastly, what this is all about, I think can be summarized in one sentence out of the minutes of the contract negotiating meeting in 1961. These minutes are in the record as an offer of proof. We offer them in the record as one part of our showing that all we have here is conventional trade activity. It was excluded from the record as a self-serving statement, but there is no question as to authenticity. Jewel wanted us to put to the men the proposition of working self-service meat departments without any employees on duty. We put it to the men, but with a recommendation that they turn it down and this is what the union's chief negotiator told the men before the vote. Secretary Kelly explained to the membership that in Jewel number one proposal, they would add to your workload, it would permit a seven-day operation around the clock, you would have to work ahead to stock the cases so you could sell out -- so they could sell their products after 6 pm. You would receive no extra pay of any kind for the extra work you have done and it would result in clerks doing your work. This is what we are talking about.