Earl Warren: Number 34, International Longshoremen's Association, Local 1291, Petitioner, versus Philadelphia Marine Trade Association Mr. Freedman, you may proceed.
Abraham E. Freedman: May it please the Court. This case and the next one are related and grow out of the same set of facts. I might characterize the first case as the injunction action and the second as the contempt case. And since they both involved and grow out of the same set of facts, I think, I would like to review the basic facts first, so that when I get to the second case, I need only go right into the legal aspects of it without again reviewing the factual picture.
Earl Warren: Would you like to have them heard together as one case?
Abraham E. Freedman: I think that would be entirely satisfactory with me, if Your Honors.(Voice Overlap)
Earl Warren: Very well, that maybe consolidated then and argued together. Divide to take your time the way you want.
Abraham E. Freedman: Thank you, Your Honors. I think that would simplify matters a great deal. The basic questions, Your Honor, on the first case the so-called “injunction case” as I have outlined that characterized it, is does a federal court have jurisdiction to enjoin a union from a work stoppage arising out of a labor dispute under the guise of an order for a specific performance to enforce an arbitrator's award. This is the basic. This is one of the basics --
William O. Douglas: Why do you use these words “under the guise”? Is this -- a pretense you mean? Is it a pretense?
Abraham E. Freedman: I think, perhaps I didn't want to go that far on my characterization and I would not impute any impropriety or anything of that --
William O. Douglas: You're talking about that power, the existence of power --
Abraham E. Freedman: Yes, Your Honor. I did not --
William J. Brennan, Jr.: Well really, Mr. Freedman, it comes down I gather part from your brief is an order enforcing an arbitrators award, an injunction for the purposes of the statute in Norris-LaGuardia that bars federal jurisdiction to issue injunction against free speech.
Abraham E. Freedman: That's a basic issue in this case, Your Honor.
William J. Brennan, Jr.: That's not under the guise of anything. You do have an order enforcing an arbitrator's award.
Abraham E. Freedman: Except, Your Honor, there is this much about it. And the reason I used the expression was this. In the first instance, we relied on Your Honor's decision in the Sinclair case which we thought met the basic issues squarely.
William J. Brennan, Jr.: You can rely on my decision.
Abraham E. Freedman: Well, Your Honors, an integral part of this Court and --
William J. Brennan, Jr.: No, but I dissented, I think.
Abraham E. Freedman: Well, I think we would all defend Your Honor's right to dissent. I think that even under Your Honor's opinion, and I think that reading Your Honor's opinion and taking the majority decision, the distinction which is made here by the court below could not stand up even under Your Honor's dissent in the Sinclair case. That's why I used the word, “under the guise of” because in the other case we met the issues squarely. The issue -- this Court met the issue squarely. Can you enter an order restraining a labor dispute? Can this -- can any federal court enter an order restraining a work stoppage or publicity or any of the other things which are protected by the Norris-LaGuardia Act. This was meeting the issue squarely. In this case, the issue was raised while -- “does it make any difference?” The court below said, “Well, we're not really restraining a work stoppage, we're not really doing any of the other things which involved the protective activity. What we're doing here is simply to enforce an arbitrator's award." And we say and I think that we can demonstrate Your Honor that this is a distinction without a difference and therefore, this is why we used the word “under the guise of” and I think that even under, as I said before, under Your Honor's dissenting opinion, that distinction could not be tenable. That is the first, that is the basic issue in this case and if Your Honors should resolve that issue as Your Honors did in the Sinclair in favor of the union here, then everything else would fall away because there would be no jurisdiction in the court below to entertain any of the other problems. Again, in the -- another question, the second question may be broken down but I'll try to put it all in one question, involved in the so-called injunction aspect of the cases, was it error for the trial judge to retain jurisdiction, assuming that he had it in the first place of a case admittedly moot just in case something might happen at some future time, and thereafter, when another dispute unrelated to the first one arose, they held the hearing on an ex parte report of one of the parties, an ex parte report of one of the parties without any formal pleading, without setting forth on record any new complaint or any amended complaint under dispute. And without requiring any newer amended complaint, pleading the new dispute and then enter an innocuous order which he refused to explain or clarify in anyway in violation of Rules 52 and 65(d) -- Rules 52(a) and 65(d). These are the two basic questions which are related to the first injunction aspect of the case, Your Honors. Now, with respect to the basic facts, ILA, the International Longshoremen's Association is in contractual relationship with PMTA, the Philadelphia Marine Trade Association under the terms of a collective bargaining agreement covering the Philadelphia waterfront. There are just a few aspects of that agreement that I would like to call to Your Honor's attention. Just I think four possibly five points -- five provisions. I might say at the outset that one of the major provisions in this contract was what they call “the day before hiring”. Previously, they would hire the same day in the morning and the man would not know whether they had any work until they appeared at the shape up of 18 different points along the waterfront and when they were hired that day, then they knew they had hired them, they would have certain guarantees so that they couldn't be knocked off for any reason except those specifically outlined in the agreement. Under this agreement now, they had to be told the day before. They have to be hired that day before for work commencing the next day and it might be during the period of the -- during the top period that the ship is in. In any event, this is what they call the day before hiring. This hiring is not done at the hiring center. This might be an important factor Your Honors will determine later. It is not done at the hiring center. These men are advised by their particular foreman the day before and they appeared. Now, one of the key provisions involved in this argument is the provision entitled 10(6). This is the Section 10(6) that Your Honors will find in the record of number 34 on page 7 which provides what they call a “set-back clause” and it simply gives the employer the right to postpone the start of work from 8 o'clock in the morning till 1 o'clock in the afternoon. And under these circumstances, the men get a one hour guarantee for the morning's work which they missed. Another provision under this contract is Section 9(h) which provides that when the men are not put to work because of inclement weather, then they must be given the four-hour guarantee for the morning. The difference here is whether or not the one hour guarantee, the employers here, tend to assert the -- and did assert the Section 10(6) and try to give them under one hour guarantee instead of the four-hour guarantee under the Inclement Weather Clause even though the men were knocked off or not put to work because of inclement weather. And then the last provision that I would note to Your Honors' attention in the collective bargaining agreement, is number 28 which relates to the grievance and arbitration machinery and this provides that all disputes and this say, I'm quoting the language now, all disputes of whatever nature or kind must be submitted to arbitration, including the interpretation of the agreement and so on. It's a very broad clause and all disputes. And I may say that under this clause, and under this particular clause and under the practice of the industry, whenever a dispute arose and that was sent to arbitration, if another dispute arose involving even the same issue, the parties did have the right and in fact exercise it and went to the arbitrator again. There may be some, might be some distinction between the first dispute and the second dispute. But in any event, both parties always exercise the right to go to the arbitrator as many times as they wanted and I may say that previously, and I cited in my brief, when the Father Comey was the arbitrator on the Philadelphia waterfront, he -- the same issue, I think it was under 14(d), which is so-called -- involving the introduction of the so-called “technological advances” into the waterfront. Father Comey had ruled on these four occasions that the issue was not arbitrable and on each occassion, he interpreted this Section 14(d) to mean that this was a matter for negotiation of the parties and it was not arbitrable because it was under the provisions of this agreement. It involved a technological advancement and therefore, it had to be negotiated and not arbitrated. The fifth time, the same kind of a dispute under the same provision of the agreement came before Father Comey. He again refuted and said, “Well, it's only human to err” and he reversed himself. There was some question. My friend raises the question and says that he didn't really reverse himself. I think he did the arbitration whether there's evidence but that doesn't matter. The point is that he received the same dispute and the same clause and he interpreted the same clause five times. The first four times uniformly; the fifth time he reversed himself. The point I want to make is that throughout, even though the same issue was involved, the parties had the right to go to arbitration and that the arbitrator say whether (a) if it is the same dispute; (b) whether he still wants to follow the same decision that has been rendered before on the basis of this particular clause.
Potter Stewart: How often? Under your theory, could they just keep doing this everyday on each item although the --
Abraham E. Freedman: No, Your Honor.
Potter Stewart: This was the industry where bargaining wasn't it? That is it was the whole port of Philadelphia waterfront?
Abraham E. Freedman: This is in the Port of Philadelphia.
Potter Stewart: The whole waterfront.
Abraham E. Freedman: They're covering the entire fort of Philadelphia. This is a provision, a contract peculiar to the Port of Philadelphia which embraces both sides of the river and extend down the river --
Potter Stewart: By industry wide, I meant the Philadelphia waterfront.
Abraham E. Freedman: Yes, Your Honor.
Potter Stewart: And the whole waterfront?
Abraham E. Freedman: Oh, yes.
Potter Stewart: In one agreement?
Abraham E. Freedman: One agreement covering the long tract of the entire waterfront. Yes, Your Honor.
Potter Stewart: An arbitrator made a decision as to the meaning of or the applicability of the provisions to that agreement for this particular situation.
Abraham E. Freedman: Yes, Your Honor.
Potter Stewart: And now you are telling us, I gather, that there was nothing final or binding about that insofar as a -- because the next day, the day after that and the day after that, there could be -- they could continue to dispute it.
Abraham E. Freedman: Well, Your Honor, it just couldn't work out that way. First of all, each dispute stands on its own two feet.
Abe Fortas: Apart from that, and up here, you had a court order since you have --
Abraham E. Freedman: Sorry.
Abe Fortas: -- wasn't there a court order enforcing the arbitrator's award before it always happen?
Abraham E. Freedman: Well, the court order is one of the things that's involved in this case Your Honor and --
Potter Stewart: I just want to be sure I understood the arguments you're making to us now and I'm not sure I do.
Abraham E. Freedman: Well, let me perhaps break it down now. I was going to cover this but I think this would be a good point to break it up. In other words, we had one dispute where the employer knocked the men off or told them to change the starting time from 8 o'clock in the morning to 1 o'clock in the afternoon. He is supposed to do that by 7:30 in the morning. So the contract reads. This went to arbitration. The union claims that it was governed by the provisions of 9(h), which relate -- which was the Inclement Weather Clause. The men were changed from 8:00 to 1:00 because the weather was inclement. The union claimed that the Inclement Weather Clause applied. The employer's claim that Section 10(6) applied which they said was unqualified. So they went to arbitration and the arbitrator handed down as award holding that Section 10(6) standing by itself was very clear and it must not be construed against -- in the light of anything else in the agreement. He did not consider 9(h), the Inclement Weather Clause did not give the union a full opportunity. I may say that at the conclusion of the testimony and that was a long joint out hearing too. We were quite surprise. I think both my friend and myself was surprised when he said he didn't want to hear argument, he didn't want have briefs so that we could sum up from the evidence which had been made. In any event, he ruled that Section 10(6) of the agreement was an unqualified provision which said that the employers could not demand the offer, could postpone the employment time with only one hour guarantee for the morning instead of the four-hour inclement weather guarantee. Now, the next time a dispute arose and I was going to cover this specifically, that was the first dispute and he handed that down in connection with the dispute which arose on April in 1965. About two or three months later, another dispute arose and men knocked off in this -- and each one of these instances, they were knocked off because the men -- one of the four-hour guarantee they thought they were entitledto the four-hour guarantee under the Inclement Weather Clause and the union again wanted to go to arbitration. I think this brings up your focuses, attention immediately on the point that Your Honor, Mr. Justice Stewart raised and that is, could we again go to arbitration? Now, just as the employers -- one that had do it and did in fact do it in other -- in connection with 14(d) when new advances were brought in to determine whether it was a new piece of machinery and whether the clause should be construed for arbitration or negotiation. The point is that the arbitrator took it and upon his -- followed that procedure. Now, between the time of the first dispute, Your Honor, and the time of the last one which was about 10 months, the employers invoked this clause 71 times; 71 times. There were four occasions, however, when there were work stoppages. The first time, I don't believe there was a work stoppage but the remaining three did result in work stoppages. Now, when Your Honor says that well, they could do it tomorrow and the next day and the next day, Your Honor, I think overlooks the fact that each of these disputes is based on a separate set of facts. It may involve the same principle or it may not. It may involve a qualification of that principle. But whether or not it involves the same principle, there's something which both parties have a right to test just as this Court has even in the past reversed itself perhaps not frequently but it has, but at least, the parties do have the right even if a sort -- that this Court should hand down a decision on a particular case. Well, let's take Mahnich versus Southern Transportation Company where the Court handed down -- this Court handed down the decision and handed down and set forth the principle of law. Later on, a plaintiff went to court --
Abe Fortas: But isn't the issue here -- isn't the issue here how you can test it on different sets of facts and the issue is not whether you could go back to the arbitrator or to the Court but the issue is whether an apparent plain violation of the Court's order, you can resort to self-help because what you say is a different set of facts. That's seems to me to be the issue. Would you disagree with that?
Abraham E. Freedman: No, I would not disagree with that, Your Honor, but I would say that in the context of this case, even if it was the identical issue, I would go so far as to say that a man should have the right to go to the arbitrator and say, I think you were wrong before.
Abe Fortas: Well, that's not -- nobody is quarrelling with that in here.(Voice Overlap)
Abraham E. Freedman: As a matter of fact, that's what precipitated this whole conflict.
Abe Fortas: Well, the Court's order of contempt was not based upon you're going back to the arbitrator, was it?
Abraham E. Freedman: That was a big part of it, Your Honor.
Abe Fortas: It's based upon the work stoppage, is that right?
Abraham E. Freedman: That's only a part of it, Your Honor. Perhaps they answer that this way. ILA in each case, when a dispute arose --
Abe Fortas: Is it right or wrong? What's the contempt order based on? Is a contempt order, based on your going back to the arbitrator or is it based upon the work stoppage in alleged contravention of the Court's order?
Abraham E. Freedman: Well, the contempt order was based on the -- of course Your Honor is correct there. The contempt order is based on the work stoppage itself. But inherent to the whole question is the fact that in each instance, when the dispute arose after the first dispute, after the arbitration was decided, and the arbitrator have gone to this award and the second dispute arose, ILA at that time wanted to go back to the arbitrator again to have an arbitrator, and have at least the dispute arbitrated. The arbitrator could have said, “I agree with the same thing”. I adhere to my ruling the same as Father Comey had said four times and the fifth time reversed himself or he could have said that under the facts of this case, there is a difference. Now, instead of the employers here blocked the union from going to arbitration by bringing this lawsuit before Judge Body and Judge Body at that time took jurisdiction and wouldn't let go. And very effectively, he blocked the union from going to arbitration throughout. Now, well, that may not be an issue in this case directly. It is related as part of the overall picture.
Byron R. White: Well, all you're really saying though is you just might as well forget whatever arbitrator's award because here, we have a new dispute and all these amounts to is enjoining a work stoppage contrary to a provision of the contract. That's all it is.
Abraham E. Freedman: No. On the contrary --
Byron R. White: Why shouldn't you? I would think you would argue that if that makes the pure Sinclair case.
Abraham E. Freedman: Well, it might do it, Your Honor, but I can't go that far. I say that --
William J. Brennan, Jr.: You'd have trouble explaining how my dissent support your theory to say that one, wouldn't you?
Abraham E. Freedman: Well, no Your Honor. I --
William J. Brennan, Jr.: No, on what Mr. Justice White has suggested to you with your argument?
Abraham E. Freedman: The basic facts, as Mr. Justice Fortas pointed out before, is whether or not there was a work stoppage, whether or not the Court's order restrained the work stoppage. What we are talking about now is a related problem which precipitated the conflict.
William J. Brennan, Jr.: Well, I know, but what Justice White has suggested is you have said that in effect that which brought under the lawsuit is an entirely different dispute from the dispute which had been resolved in arbitration sometime before.
Abraham E. Freedman: That's right, Your Honor.
William J. Brennan, Jr.: And that therefore, the action brought by the employers before a Judge Body was in the essence, nothing more than an action to restrain a work stoppage in violation of the contract. Is that right?
Abraham E. Freedman: I think that's true. Yes.
William J. Brennan, Jr.: Well, if that's true, then why isn't Justice White right that this is just -- you're trying to make a pure Sinclair case out of this.
Abraham E. Freedman: Well, I think this is a pure Sinclair case. There's no question about it to my mind.
William J. Brennan, Jr.: Oh! Why can't you question about it?
Byron R. White: Well, certainly, if you are right, this later dispute has no connection with the earlier arbitration award. And then that's all it is. It's a pure Sinclair case. The thing that may make this different is that if there is an arbitrator's award, what really applies to this union conduct then the argument is that it should be able to enforce an arbitrator's award even if it involved enjoining a work stoppage.
William J. Brennan, Jr.: I think for purposes of this case, Your Honor is undoubtedly correct because this is the way the court below treated it. And therefore, assuming that the Court was correct as Your Honor points out now, assuming that they were correct, that raises the Sinclair issue very squarely. Now, if I may just briefly scheme over some of the highlights and before I get to the legal aspects of it, the first --
Speaker: (Inaudible)
William J. Brennan, Jr.: I wonder -- yeah.
Speaker: (Inaudible)
William J. Brennan, Jr.: I wonder if you haven't set up the ground where it's pretty effectively, Mr. Freedman.
Abraham E. Freedman: I didn't quite get your point --
William J. Brennan, Jr.: I'm just wondering if like Justice Harlan if you can't get that question you are asking us to do something.
Abraham E. Freedman: If we can't get the --
William J. Brennan, Jr.: Without going further into all these background in fact.
Abraham E. Freedman: Well, I think you're right. I think that we can without going into the fact, very well, sir. Let me get right into it. The Court entered -- entered this as I have characterized it, a very innocuous order at the conclusion of the testimony without any preliminary pleadings, without any of the other safeguards which are required by Rules 3 and 4 and Rule 8 of the Civil Rules -- of the Federal Rules of Civil Procedure. On the third dispute, Judge Body entered an order in which he said, “The arbitrator's award will be enforced.” This is the whole order. Now, what was the order? The order, in effect was that the one-hour guarantee shall be given instead of the four-hour guarantee under the Inclement Weather Clause. There was no order by the arbitrator requiring the men to return to work and when he simply said the arbitrator's award will be enforced, we could argue that on some other case. But the point is what did it mean? Did it mean that there was a work stoppage being restrained? Did it mean that he union could not go to arbitration again? And I may say that on page 7 of my brief -- 7 and then the footnotes on page 8 too -- a footnote on 7 and on 8, Your Honors will find an incredible exchange least I thought it was incredible, between the Court and myself. He says,“You can read the English language, can't you?” All that it said was the arbitrator's award will be enforced. This was later construed to be an injunction or a restraining order and yet, it just simply used those three words. No fact findings as required by Rule 52(a) and all non-jury cases have certainly no fact finding or anything which was required under Rule 64(d), 65(d), which relates to restraining orders or injunctions. So I asked them to please explain it and here's what he said to the Court, “I will sign this order.” That was the order. The arbitrator's award will be enforced. That's the works. By Mr. Freedman, “Well, what does it mean, Your Honor?” The Court, “That you will have to determine what it means." And before I go further, the rule is specific with respect to injunctions if it's going to be a restraining order. The parties got a right to know. The rule specifically says, you got to tell him specifically what it can do and what it can't do. And here's what the further colloquy shows. The Court, “That you will have to determine what it means.” Mr. Freedman, “Well, I'm asking. I have to give my client advice and I don't know what it means. I'm asking Your Honor to tell me what it means. It doesn't” -- The Court, “You handle the case.You know about it. You are arguing it. It doesn't fit into the case.” By Mr. Freedman, “I'm telling you very frankly now. I don't know what this order means, this proposed order. It says 'enforcement of the award'. Now, just what doesn't mean. Are we being restrained from the work stoppage?” The Court, “The Court has acted. This is the order.” By Mr. Freedman, “Well, won't Your Honor tell me what it means?” The Court, “You read the English language and I do.” By Mr. Freedman, “I will ask you but it doesn't say it. I can't understand it. I'm telling Your Honor, I don't understand it. Now, perhaps, Your Honor can explain it to me that this means that the union cannot engage in a strike or refuse to work or picket?” The Court, “You know what the arbitration was about. You know the result of the arbitration.” Mr. Freedman, “Your arbitration here was under a specific set of facts involved in the interpretation of the contract under a specific set of facts and he made that interpretation. Now, how do you enforce it? The case is over and done with. That case is over and done with. These are new cases. Your Honor is changing the contract to the parties when you foreclosed them from going to arbitration on this point again.” The Court, “I have signed the order. Anything else to came before us.” Mr. Freedman, “I know, but Your Honor is leaving me in the sky. I don't know what to say to my client.” Now, that was precisely the situation. That in the face of Rule 65(d) which says that when you got a restraining order, if it was in fact a restraining order, it's got to spell out specifically the conduct which you can do, which you cannot do so that the defendant doesn't get trapped in any kind of situation. And here, the Court just threw away the rule book.
William J. Brennan, Jr.: That is he did if this was a restraining order.
Abraham E. Freedman: Yes, sir, if it was a restraining order or if it was an injunction.
Byron R. White: But what is the arbitrator's award say?
Abraham E. Freedman: Well, he subsequently construed it as a restraining order or an order restraining --
Byron R. White: What does the arbitrator's award say?
Abraham E. Freedman: The arbitrator's award said, “I hold that Rule 10(6), Section 10(6) is not qualified and I --
Byron R. White: By this weather that --
Abraham E. Freedman: No, he didn't even --
Byron R. White: Not qualified by any opinion.
Abraham E. Freedman: Qualified but he said qualified by standing by itself. He refused to construe it in the light of any other provision agreement.
Byron R. White: So that the employer had a right to put over on one-hour guarantee and four hours in the afternoon?
Abraham E. Freedman: That's what he held, Your Honor.
Byron R. White: Well, that's perfectly clear, isn't it?
Abraham E. Freedman: Yes sir.
Byron R. White: Any situation that the employer by 7:30 in the morning may put over. And that's a perfectly clear (Voice Overlap).
Abraham E. Freedman: I would say that's correct, absolutely right.
Byron R. White: And that the idea was that union should be bound by that contract as so construed.
Abraham E. Freedman: He said, in that case under that --
Byron R. White: Do you think the union was being -- do you think the union living up to the contract if it struck -- I mean that the contract meant something else?
Abraham E. Freedman: If the union --
Byron R. White: Well, let's assume that at 7:30 in the morning that the employer says, “We're putting you over to 1 o'clock and you have five hours guaranteed for the day.” And the union says, “Sorry, we got to have eight hours; we're striking.” Now, the union living up with the contract after that --
Abraham E. Freedman: I would say absolutely not.
Byron R. White: After that arbitration award?
Abraham E. Freedman: I would say that there would be a violation of contract.
Byron R. White: Well, and what's unclear about saying, “I hereby enforce the award” and what's unclear about holding that a strike in that situation is covered by the order?
Abraham E. Freedman: Well, Your Honor, the arbitrator here simply said --
Byron R. White: Do you have any doubt now that that strike was covered by that -- is a breach of contract contrary to the award.
Abraham E. Freedman: Well, Your Honor, gave a set of facts which clearly spelled out a violation of the contract by the union and I would clearly admit it.
Byron R. White: Well, yes but you asked the judge does it cover work stoppages. Well I just asked you, you said it did.
Abraham E. Freedman: Well, Your Honor asked me if the union would be in violation of the contract, if there was a -- if the arbitrator covered as did -- as he did here. He was construing the contract, no question about it. But he was construing it under specific set of facts in a particular dispute. I may say that --
Byron R. White: Yes, I know but you could have -- that isn't related to the question you asked the judge and the question I asked you. Is the work stoppage contrary to the meaning of the contract a violation of the award?
Abraham E. Freedman: Well, Your Honor, I would say I was concerned that what Your Honor was talking about now might have been in the judge's mind. I was concerned about that very point that's why I asked him. Does the order restrain a work stoppage? I wasn't sure by any means. I was also concerned, Your Honor, that we could not go to arbitration again on any manner which might even remotely resolve the situation even though I thought we had a right to do it and so I asked him those questions. Now, I have a right to know when Rule 65(d) spells that out very specifically that he's got to set it forth -- he's going to set forth what we can do and what we can't do. Now, the best that you can give to this is that you have to guess what it means. You have to guess it what he means. Now, the arbitrator ruled that under these circumstances in this case, just giving expression to Rule 10(6) of the agreement, the employers can't change it but how about 9(h)? He didn't -- the arbitrator didn't say a word about 9(h) and the union came in here and one of the four-hour guarantee under 9(h) but he didn't say anything on 9(h). Now --
William J. Brennan, Jr.: I do -- I do hope Mr. Freedman that you're going to get to the questions that you hope that we're going to -- help to decide.
Abraham E. Freedman: Very well, sir. I think I would respectfully submit to Your Honors though on that point to leave it that I think that the trial judge was clearly in error in failing to spell out what he had in mind especially if there was any confusion in my mind I had a right to know.
Speaker: How about the to simplify the (Inaudible)
Abraham E. Freedman: And 52(a) also Your Honor.
Speaker: I thought you might simplify this. My question is whether that rule is self-executing or whether you have (Inaudible).
Abraham E. Freedman: I think it is self-executing but I think that we can also show prejudice, how much prejudice that he's practically putting the union out of business with the order which he subsequent -- which he himself subsequently construed to be a restraining order. I might say Your Honor, just before I leave that subject that in the Court of Appeals when I argued this case, one of the judges said, he doesn't mean a restraining order. What he said is just enforcing the award. That's not a restraining order. It doesn't say he's restraining any work stoppage. This is what was said to me and I said I can't tell. At least I was entitled to as a clear explanation from the Court as to what he meant. And if he meant to restrain it, I think he had a duty to say it.
Abe Fortas: Well, did you -- were there alternatives as to how you comply with such an order? You mean the Court said, “I enforce the arbitrators' award,” is that right?
Abraham E. Freedman: That's right, sir.
Abe Fortas: Now, are they -- is there – do you have a choice as to how you comply with the arbitrator's award?
Abraham E. Freedman: What he should have said --
Abe Fortas: What's the problem here? What was the ambiguity?
Abraham E. Freedman: Well, he didn't say and wouldn't say whether or not it restrained any work stoppage, whether it restrained picketing, whether or not it restrained --
Abe Fortas: So you mean it was still unclear that he might say, “I enforce the arbitrator's award but you found this that it could still engage in a work stoppage to contest the arbitrator's award. Is that your point?
Abraham E. Freedman: That arbitrator's award -- Your Honor, the arbitrator's award could mean a lot of things. What we're saying is that there shouldn't have been any doubt about it at all. And I, as counsel, had great doubt in my mind about what it meant. I know that he probably have in his mind a restraining order against the strike or whatever it was but I think you should have said and I wasn't sure.
Abe Fortas: The order appears on page 113 of the record, doesn't it? And the order says that or the judge says that the arbitration award is enforced on let's say dependent, meaning your union is hereby ordered to comply with and to abide by the said award. And I -- is it your suggestion that there are some ambiguity as whether that means that you can contest the award by work stoppage?
Abraham E. Freedman: No, I had a great doubt in my mind whether he meant by that that if you don't abide that this award means that you can strike in connection with that, that the men can't picket, the man can't engage in any work stoppage. Also, I was concerned that this particular expression which he used restrained us from going to arbitration again on the same point by the same principle in any other dispute.
Speaker: May I ask you Mr. Freedman. Suppose (Inaudible)
Abraham E. Freedman: Preventative for what, sir?
Speaker: Going out of the current statute you got to be (Inaudible).
Abraham E. Freedman: If the arbitrator were to hold that a work stoppage under these circumstances would be a violation of the contract, I would say that the -- in this particular case, I would admit that the union would be violating the agreement if it did so. If the arbitrator would say so, we had a right to go to the arbitrator and ask him to make that determination.
Speaker: Well, what I what I referring here (Inaudible) do not refer to your ambiguity when you say (Inaudible) to the application of the court order (Inaudible).
Abraham E. Freedman: I think, Your Honor that Your Honor's posing the question as to whether or not the change in parties may have something to do with it.
Speaker: I'm trying to find out with the order of ambiguity that you say is involved in the (Inaudible).
Abraham E. Freedman: Well, the order itself, Your Honor, did not restrain a work stoppage. The order itself did not. So when you enforce a work stoppage or that the order did was to say that the manner entitled only to one hour instead of four hours. That's the effect of the order. Now, when you enforce that order, it means that in that dispute on April 25th, the men couldn't get their four hours. They can only get one hour. There was no work stoppage involved. Now, when we enforce that order, what does it mean? Does it mean that we have to extend and we have to reason and argue that from that, in the future, if we engage in that again there would be -- the arbitrator would hand down a decision saying “you've got to go back to work”. All he did was decide that the men were only entitled to one hour instead of four hours. That's what he decided. There was no decision as to whether or not the men should go back to work.
Abe Fortas: Is it your position that this order is governed or is not governed by Rule 65(d)?
Abraham E. Freedman: It is absolutely governed.
Abe Fortas: Well, 65(d), then you do agree that it is an order granting an injunction?
Abraham E. Freedman: Yes, Your Honor.
Abe Fortas: An injunction against what?
Abraham E. Freedman: An injunction, as subsequent development showed, an injunction against the work stoppage, a violation of Section 4 of the Norris-LaGuardia Act.
Abe Fortas: I know you seem to be able to have construed that order with some clarity and precision right now. It couldn't have been anything else. Could it have been a, except an injunction to prevent a work stoppage which would interfere with the carrying out of the arbitrator's award whether or not the legal conclusion follows of that Norris LaGuardia.
Abraham E. Freedman: The arbitrator's award has already carried out. The men didn't get their four hours. They get one hour and nobody went on to dispute about that so that so far as that award was concerned, it was done and over with. Now, at the time that the dispute arose, there would be another question of whether it should be four hours or one hour. What the union wanted to do is to have the arbitrator pass and determine the validity of Section 9(h) --
Byron R. White: Mr. Freedman, could you say that after the arbitrator's award that the union struck when they were put over the next time that they could be sued for breach of contract and get them and be held for damages. Now, a while ago, you said absolutely that's a breach of the award.
Abraham E. Freedman: I think, Your Honor, that if the union struck and it was found that they violated the agreement, they could be sued for damages. Yes, sir.
Byron R. White: Well, I know, but what I want to know is after the award which construed the contract and said that you can put them over under any circumstances that they struck when they were put over the next time, wouldn't you say they've breached the contract and that they could be held liable in damages even if they couldn't be enjoined?
Abraham E. Freedman: They could have –- but Your Honor's relating that to the facts in this case. They could sue us for damages but I don't think that they could prevail.
Byron R. White: Why not?
Abraham E. Freedman: Because the arbitrator's award would then have to be an issue then we would make that -- we would not have to accept the arbitrator's judgment. He would have to approve whoever came in the Court under those circumstances, would have to prove the contract and then they would have to cope with Rule 98(h), the Inclement Whether Clause. It had --
Byron R. White: I know but the arbitrators already said that that is not an issue in this case.
Abraham E. Freedman: Well, Your Honor --
Byron R. White: He's already said that this clause stands on its own two feet.
Abraham E. Freedman: Right. He said that this clause has to be construed all by itself without regard to any other part of the agreement. That's what the arbitrator said.
Byron R. White: So you're really not arguing in this case that -- you're really not arguing in this case much about the fact that this is an injunction case. You would make the same argument when it was a damages case.
Abraham E. Freedman: Well, may be I'd better get right to the Sinclair case.
Byron R. White: That's what Mr. Justice Brennan has been suggesting.
William J. Brennan, Jr.: I'm not hoping.
Abraham E. Freedman: I know Your Honors have been waiting for this one too and I certainly do want to get to it. The Sinclair case is very similar except for the fact that in the Sinclair, there was no arbitration award as such and I respectfully submit to Your Honors that it makes no difference whether there was an award or whether there was no award if you have in fact the basic provisions to the agreement. Here you have a -- in Sinclair as here, you had an arbitration provision which was final and binding, you had a No-Strike Clause which was the same as the No-Strike Clause that well, which you can impute to this contract also. There was no real distinction between Sinclair and in this case. In Sinclair, Your Honors held that although you could have an order enforcing an arbitrator's award, you could -- it would be enforced except to the extent that it would run afoul of Section 4 of the Norris-LaGuardia Act. In all other aspects, the --
William J. Brennan, Jr.: Wasn't that, Mr. Freedman that there might be under 301 an order directing arbitration?
Abraham E. Freedman: An appeal, sir?
William J. Brennan, Jr.: Directing arbitration. There was no arbitration in that case. You've just said that Sinclair referred to. I don't think it did, did it? An order enforcing an arbitrator's award, it was -- you can have an order requiring the parties to arbitrate. Isn't that what Sinclair is?
Abraham E. Freedman: That's right, sir and Sinclair said that. You can have an order requiring the parties to go arbitration and that did not run into or run afoul of the Section 4 of the Norris-LaGuardia Act.
Byron R. White: But do you think Sinclair said that that order -- such an order was not an injunction or just that it wasn't --
Abraham E. Freedman: Oh! Sinclair said it was an injunction. Sinclair, as a matter of fact --
Byron R. White: I don't know but the order enforcing arbitration, the order to arbitrate -- order to arbitrate with Sinclair said it could be entered.
Abraham E. Freedman: I think -–
Byron R. White: It said that -- it didn't say it was an injunction. It said that it wasn't a kind of conduct which the --
Abraham E. Freedman: Norris-LaGuardia Act prohibited.
Byron R. White: -- applied here, yes.
Abraham E. Freedman: Well, Your Honor, although there was no arbitrator's award in Sinclair, necessarily however, that fact is implicit because in order to reach this decision -- in order to reach Your Honor's decision, you went in to the whole history of it, the history which showed -- the legislative history which showed that there was a question as to whether or not Section 4 of the Norris-LaGuardia Act had been superseded by the enactment of Section 301 of the Labor Act. And Your Honors finally held that the Norris-LaGuardia Act had all the vitality that it had before the enactment of Section 301. So that we start with a premise that you can have the enforcement of an award and -- oh! And that same case, Your Honors held that the -- you recognized that arbitration was the so-called “kingpin of the federal labor policy”. But you said that this Court is not the one that forged it. That was for Congress to forge and I might say there that I think that the court below went astray when they took a part of Your Honor's decision in the Sinclair cases, stopped right in the middle where this Court was saying that arbitration is an important aspect of federal labor policy and so on but then they stopped right in the middle of the part there because Your Honors went on to say, “However, wherever the conduct which is being restrained or which is involved is an opposition to that involved in Section 4 of the Norris LaGuardia Act. It just can't be entertained.” And Your Honor said that the courts have not about to go back into the business of injunctions again, of handing out injunctions against labor unions. And so that -- I think that's where the court below went wrong in construing or in referring to Your Honors' opinion. I stopped right in the middle of the paragraph and they'd left out the vital part. If I -- if I may even -- on page 14 of my brief, after reviewing the language which the Court of Appeals below had engaged in, and they stopped -- as I said right in the middle of the paragraph, Your Honors, the paragraph contiues with this language. At the most, what is involved is the question of whether the employer is to be allowed to enjoy the benefits of an injunction along with a right which Congress gave him in Section 301, the suit for a breach of a collective bargaining agreement. And as we have already pointed out, Congress was not willing to ensure that enjoyment to an employer at the cost of putting the federal courts back into the business and of enjoining strikes and other related peaceful union activities. This is the part that the court below didn't see apparently and overlooked. And this changes the whole complexion of the opinion, of the decision of the court below. Now, Your Honors, in that case also reviewed the legislative history and demonstrated that it was intended, Congress specifically intended to retain the provision in Section 4 of the Norris-LaGuardia Act and whether or not the federal -- the arbitration provision is the kingpin of federal labor policy, this is a matter for Congress to decide and not for this Court. Now, the same, the amici who filed the brief here were also involved in a similar situation. They argued the case as one of their clients was involved and also another one in New York -- both in New Orleans and then New York. In the New York case, that was the Marine Transport Lines versus Curran the specific issue involved here was presented there in which the amici were involved. And there, they made the distinction. They attempted to make this distinction that because there was an arbitrator's award involved, somehow that gives it a different complexion at the Court that's not really a labor dispute which is involved, in the first place, that's what they contended and the second place, since it is an arbitrator's award, they're not really were stopping a work stoppage. That's simply enforcing an arbitrator's award. Here's what the Court said in that case which I've set forth on page 14 of my opinion -- of my brief. The Court is being asked to enjoin a work stoppage. This is the reality of the situation. Whatever may be the form of the proceeding and citing to the extent that Philadelphia Marine Trade Association, that's the case involved here, is to the contrary, I decline to follow that position. Then the Court went on to say, ”In Sinclair, the employers sought to enjoin a work stoppage before the arbitration took place in order to make the arbitration effective”. Here, the employer seeks to enjoin a work stoppage after the arbitration has taken place and after the arbitrator has directed that the work stoppage ceased. In my opinion, there was no significant difference between the two situations as far as the power of this Court is concerned. It inevitably follows that Sinclair, from Sinclair, that this Court lacks jurisdiction to grant the labor request here, citing also the Gulf South America case. There was one other case -- there's one case which the respondent here relies or that's the New Orleans case in which the decision by judge, Chief Judge Christenberry down there, he did enforce an arbitration award back in 1962. However, Judge Christenberry had the identical question before him in Gulf South America case and this was after the Sinclair decision. At that point, after reviewing the Sinclair decision, he reversed himself so that actually, there was no basis for the -- there's no real authority or they don't even have a single case to point to in a federal system which could support their proposition. The case went up to the Court of Appeals and the same distinctions were made. In the Court of Appeals for the Fifth Circuit, the same distinctions were made there and which are made here. On this point, the Court there found that there were two aspects to it. First of all, they found that the arbitrator himself had exceeded his jurisdiction and said that he -- it should be dismissed on that ground. But they also made this point right squarely on this -- the point that's now under consideration and I quote from the opinion. “The District Court dismissed the complaint on the ground that it was without jurisdiction to grant the injunctive relief in view of Section 4 of Norris-LaGuardia Act.” The Court rejected the contention of the employer that Section 301 or the 10(5) of the Act was a pro tanto repealer of Section 4 of Norris-LaGuardia and the Court does that jurisdiction. Then they went on to make this comment. The Court relied on Sinclair Refining Company versus Atkinson as authority for this holding. That decision of the Supreme Court has direct authority on the question and is controlling. There the employers sought the injunction directly while he had the injunction as sort under the guise of enforcing the award of an arbitrator but this is a distinction without a difference under the facts of this case. And any other result would be exhorting form of a substance. That's what the Court of Appeals for the Fifth Circuit said in connection with the identical contention which is here made and which was adopted by the Court of Appeals below and the Third Circuit. Now, as I said, there are only two cases which the respondent relies on. One is the New Orleans case. I think the amici cited by Chief Judge Christenberry and as I pointed out, Chief Judge Christenberry reversed himself in the later Gulf South America case and he was affirmed by the Court of Appeals. The other case is the Rupert case cited in their brief. The Rupert case is decided on the basis of an entirely different law. It's the New York -- it was the state court case decided by the State Court of New York, decided on the State Law of New York, which as the state court, the Court of Appeals in New York is very careful to point out is different in the federal law and because of that difference, they held that the arbitrator's award could be enforced. But because of the difference in the New York statute and they recognized that under the federal system, it would have been a contrary result that would have been achieved and they reviewed some of the federal cases on the subject. There are a number like the Seafarers versus Bull Line and few of the other cases and they said that well, these were under the federal statute and --
Byron R. White: Mr. Freedman, what if you enact in the Sinclair case -- forget Sinclair for a little bit. Let's assume there is an order to arbitrate. The union refuses to arbitrate and there's an order issued against it to arbitrate as the contract require and the union goes ahead to arbitration but strikes the same time. May the strike be enjoined?
Abraham E. Freedman: It cannot be enjoined Your Honor but they can be sued for damages. If the union is wrong and this is exactly what this Court said in Sinclair, the damage remedy is adequate. The damage remedy is all that Congress intended to give to the employers under the circumstances so that the employers are not without a remedy. And then from the practical standpoint, the skills are even on that basis. With the injunction, and I think that perhaps Congress was motivated by this, but with the injunction, the employers put the unions in a straightjacket.
Byron R. White: Yes, but don't you think the union contract says we will arbitrate disputes. The union, as a piece of collective action refuses to arbitrate and the Court orders it to arbitrate and to comply with the contract, isn't that an injunction?
Abraham E. Freedman: The Court orders the union to arbitrate and of course, that's a valid order that -- there's no -- there's nothing in Norris-LaGuardia (Voice Overlap).
Byron R. White: Is that an injunction?
Abraham E. Freedman: Yes, that's an injunction but it is not an injunction restraining any of the protected activity under Section 4 of the Norris-LaGuardia Act.
Byron R. White: Why not?
Abraham E. Freedman: Well, as this Court pointed out in Sinclair, it doesn't restrain a strike. If you make the union go to arbitration, it doesn't restrain a strike. It doesn't restrain any of the other things. I have set out on page 21 of my brief, the provisions of Section 4 of the Norris-LaGuardia Act and it does not infringe on any of those provisions which are contained in Section 4 not the order compelling arbitration. Section 4 was designed by Congress to prevent injunctions against peaceful strikes and against -- I might say also, giving publicity to the existence of the facts involved in any labor dispute and so on whether by advertising, patrolling and so on. There are few of the four five things but none of these provisions would prohibit requiring the union to go to arbitration and incidentally --
Byron R. White: So you don't really say then that the order to arbitrate -- the order -- the order enforcing an arbitrator's award, you do not really claim that as -- that the Court can't enter that. You just really say that that order can't be construed to cover the strike?
Abraham E. Freedman: That's right. That's exactly right, Your Honor.
Byron R. White: Can you be held in contempt for the --
Abraham E. Freedman: No, Your Honor, because he has no jurisdiction to restrain. If the order -- no, if the order is to be construed to restrain a work stoppage or a strike, and there was no strike incident that makes it --
Byron R. White: Well, the orders to enforce award are just a nullity.
Abraham E. Freedman: Well, no --
Byron R. White: You say they can enter them and they are injunctions. That's true but this so is an order to arbitrate, they're just nullities.
Abraham E. Freedman: If the -- if the order -- if the order restrained a strike, if it was the intent of the order to restrain a strike then it was a nullity. It had to be a nullity.
Byron R. White: Let's assume that not cross anybody's mind if they just entered the order to arbitrate but it's a nullity of the union to strike, isn't it?
Abraham E. Freedman: No, Your Honor. If the order itself has to be a nullity, if it means that a strike is restrained under Section 4 of Norris-LaGuardia Act, the order --
Byron R. White: But there's no way of enforcing that order. You can't sue for damages, can you, to enforce an order?
Abraham E. Freedman: Well --
Byron R. White: They can sue for damages for breach of contract.
Abraham E. Freedman: They can sue for damage -- for breach of contract.
Byron R. White: Could the -- could the Court enter an order of civil contempt?
Abraham E. Freedman: Well, you mean restraining civil contempt because he'd order the strike restrained?
Byron R. White: Let's assume that everyday of strike you pay $20?
Abraham E. Freedman: Not under Norris-LaGuardia. He is the -- the federal courts absolutely are forbidden to --
Byron R. White: Although you say the union could be sued for damages?
Abraham E. Freedman: They can be sued for damages but they can't be restrained by court order.
Byron R. White: Well then, the order enforcing the award really is a nullity that you can't even (Voice Overlap).
Abraham E. Freedman: That's our point Your Honor. That's the whole point we're making here. It's a nullity. Since he intended that this order should restrain a strike or work stoppage, it has to be a nullity?
Byron R. White: Well, you just might as well say that the orders enforcing awards are out the window.You --
Abraham E. Freedman: Oh! No. No, because there are many other types of awards. If it was a money award that could be that the arbitrator may say that the --
Byron R. White: But if the judge ought to say to the employer comes in to or the union for that matter wants to come in and enforce an award, “Forget it because it won't do me any good to enter an order because I can enforce it either by civil contempt or in any other way and you just or we admitted to a suit for damages for breach of contract.
Abraham E. Freedman: Well, this is what Congress -- this is what Congress intended.
Byron R. White: So you do say there shouldn't be any actions to enforcing award?
Abraham E. Freedman: Not if that restrains a strike or work stoppage or any of these other things involved in Section 4 of Norris-LaGuardia. And I based that statement on Your Honor's opinion in Section 4 as spelled out as clearly as it could possibly be in Sinclair. If the order -- as Your Honors said, if I may use Your Honor's phraseology, at most what is involved is a question of whether the employer is to be allowed to enjoy the benefits of an injunction along with the right which Congress gave in the Section 301. That's very -- to sue for breach of a collective bargaining agreement. As we've already pointed out, we're not willing to ensure jeopardy. He can have both. The Congress -- this Court said that Congress didn't intend that he should have the right to restrain the strike, if there's going to be a strike. I might point out that we have been assuming here that the union was on strike on all these occasions and not one of the four instances and no instance was the union on strike, that the union called a strike. In each case, it was spontaneous work stoppage caused by the men who are affected, who went on four hours instead of one hour. So that there was actually no -- there was no question but that the union was not involved in any strike here.We have assumed that for the purpose of this argument but actually, the facts show up so with the contrary.
Hugo L. Black: What did the judge hold about that?
Abraham E. Freedman: I'm sorry?
Hugo L. Black: What did the judge hold about that? You say the facts show the contrary?
Abraham E. Freedman: What did the judge hold what, sir?
Hugo L. Black: You said the fact show the contrary, contrary to what?
Abraham E. Freedman: Oh! Take for example when a contempt order, the -- this is the way the situation arose. The men were knocked off so to speak. They were told that they can't go to work in the morning and then they will go on to be paid their one hour guarantee and they protested and they came to one of the agents, a fellow by the name of Smith. And he said --
Hugo L. Black: What did the Court found? What did the Court found about that if any?
Abraham E. Freedman: The Court found that it was a wild cat strike. All he said was there was a wild cat strike, thought that the union is responsible because of the mass action of the members. Now, here's another point Your Honor --
Hugo L. Black: You found that it was a wild cat strike in order to what?
Abraham E. Freedman: A wild cat strike caused by the order.
Hugo L. Black: What's the order based on that? What was his order based on that?
Abraham E. Freedman: He says that -- his order says that the union, its officers and members are in contempt because of the mass action. This is the word he used, “mass action of the members” even though the union itself tried to stop the strike in the first instance --
Hugo L. Black: And what is your objection to that now?
Abraham E. Freedman: This was his order of contempt not his first order but his order of contempt. Now, we say that so far as the mass action is concerned, he had no right to do that because the union itself did not strike. The union did everything that it could --
Hugo L. Black: The Norris-LaGuardia Act has anything to do with it?
Abraham E. Freedman: The Norris-LaGuardia Act prohibited the order in the first place. His sole order was --
Hugo L. Black: Is that your basic argument that the order is void because of the Norris-LaGuardia Act?
Abraham E. Freedman: Well that -- we say that if Your Honor holds that Norris-LaGuardia Act prevented them for entering such an order, you don't have to reach the next question. But when he made the finding that the union was responsible for the mass action of the membership, he invoked another principle. And that was that if the union used all good faith in order to stop the strike and did not precipitate it and did not course it, did not call it on the first instance, then it cannot be held responsible for this action of the members. Your Honors have got to remember that the union represents not only its members. It represents the whole unit which may be non-members and there are a substantial number of members and I may say its --
Hugo L. Black: Is your basic first argument that the order is void because of the Norris-LaGuardia Act?
Abraham E. Freedman: Yes, Your Honor, that's the first.
Hugo L. Black: Suppose you are right, if you should be found to be right on that, what is all these other arguments have to do with it?
Abraham E. Freedman: You don't have to reach any other argument.
William J. Brennan, Jr.: But if you're wrong, you do?
Abraham E. Freedman: Sir?
William J. Brennan, Jr.: If you're wrong, you do?
Abraham E. Freedman: If I'm wrong, if Your Honors should reverse Sinclair -- I pray to God you don't but --
William J. Brennan, Jr.: -- distinguish it.
Abraham E. Freedman: Well, or distinguish. If Your Honors should distinguish to use the expression of the Fifth Circuit, I won't use that expression since it seems to be offensive under the guise of. But if Your Honor should distinguish it, I would say then we come to these other points. For example, mass action then how can it be imputable to the union? And the --
Abe Fortas: Well, that's not before us, is it? That's not before us, is it? It's not in your questions presented --
Abraham E. Freedman: Oh! Yes. Mass action is part of the question, Your Honor. That's in the second case.
Abe Fortas: Oh in the second case?
Abraham E. Freedman: Yes, Your Honor.
Abe Fortas: I see. In the first case here, you were assessed to find them a $100,000 (Voice Overlap).
Abraham E. Freedman: No, the second one.
Abe Fortas: Second one?
Abraham E. Freedman: We had broken this down to the two cases. The first one is the injunction case which involved where I have said it's the innocuous order and the second one is the contempt case which he held the union in contempt because they did engage in a work stoppage, not the union but these men engaged in work stoppage and he held the union liable for the mass action of the membership. So he said membership. Some of them were membership. I may say that the gentlemen from the Philadelphia Marine Trade Association, the president took the stand. He said he talked to some of these men who were striking or who were walking the picket line. He said he never even had seen him before. He's been in the waterfront 20 or 30 years. Never seen him before, so that obviously, there was a strong -- there was a substantial percentage of men who were not under union. But assuming even they were union members, all of them, the point is that the union cannot be held liable for the mass action of the members unless it participated with the members and unless by some either overt act or by some failure to act which under circumstances where they should have acted. As for example in the United Mine Workers case, the Court of Appeals held that Mr. Lewis first didn't send out a single letter and he didn't take any step to try to call off the work stoppage and under the circumstances, he was in contempt. So the Court of Appeals said, that it would be different and the -- that was in the United Mine Workers case. The Court of Appeals said, it would be different if Mr. Lewis had sent out a letter stating his position that he didn't want a strike or it taken some means. In this case, the union sent out two pamphlets in which they most strongly point out to the men that they were wrong, that they had got -- they got a good contract and they should adhere to it and that they would take them out into arbitration; that the union itself would handle it, that union officials should handle it but the men nevertheless engaged in this wild cat. The court below held it to be a wild cat. And on the basis of the UMB decision, they should be absolved for the actions of the membership.
Hugo L. Black: May I ask you if you, have they fined against and stayed anyway or if we're going to decide against it, how much money would you now owe, if any?
Abraham E. Freedman: Well, he fined us a $100,000 a day Your Honor, and they were -- the men continued in their --
Hugo L. Black: Is that in effect now? You told that if you were to lose here, you would be -- you would owe any particular amount. If so, how much?
Abraham E. Freedman: He hasn't -- he held another hearing, he held that another --
Hugo L. Black: I'm not talking about the other hearing. All I want to know is about the order. What would happen to you if you lose on the merit with reference to the money that supposed to have been accumulated if any (Voice Overlap).
Abraham E. Freedman: Between $200,000 and $300,000.
Hugo L. Black: Between what?
Abraham E. Freedman: Between $200,000 and $300,000.
Hugo L. Black: That's what you would owe?
Abraham E. Freedman: That's right, sir.
Abe Fortas: That's what I was asking you about, sir. I don't see that you have attacked that. The assessment of that fine either in terms of the nature of a contempt or whether or it was a punishment or whether it was a civil contempt or criminal contempt. You have not raised that question have you, in either of your cases?
Abraham E. Freedman: We have not raised the question about the specific amount Your Honor, because he hasn't consult to fix the specific amount except that he is --
Abe Fortas: You haven't raised the question as to whether this is civil or criminal contempt?
Abraham E. Freedman: We say that it doesn't matter whether it's civil or --
Abe Fortas: So you haven't raised it. Have you raised it or have you?
Abraham E. Freedman: Yes, it's in the brief, Your Honor.
Abe Fortas: Where?
Abraham E. Freedman: Is it in the question? It's in the second brief.
Abe Fortas: Not in your questions presented, is it?
Abraham E. Freedman: Yes, Your Honor.
Abe Fortas: Well, show it to me.
Abraham E. Freedman: I take it that what Your Honor's talking about is the mass action aspect of the --
Abe Fortas: No, I'm not. I'm talking about whether the judge's action when he held that -- when the alleged contempt and said the union has to pay a $100,000 a day or whether you don't raise a question as to whether that the particular form of his action was justified as a matter of law whether it was a civil contempt or a criminal contempt.
Abraham E. Freedman: Well, Your Honor, this comes up in the request for jury trial, which is number 4 in the next case. And there, the court below said that since this came at this -- they held that this was a criminal contempt or rather a civil contempt and they held that the request for a jury trial would be appropriate only in the event it was a criminal contempt. Actually, this is a specific issue which we have raised as I said starting on page 17 of our brief and number 78, Your Honor, and which the question of civil contempt as against criminal contempt is specifically and squarely put on the table. Now, in that case, when the Act itself was originally enacted in the Norris-LaGuardia -- it was part of the Norris-LaGuardia Act originally, it covered both civil and criminal contempt arising under that Act, under the Norris-LaGuardia Act. Subsequently, it was transferred from the Norris-LaGuardia Act and put them under Title XVIII with the criminal statutes. However, the Act itself says that it applies to all contempt arising out of labor disputes; all contempt arising out of labor disputes. The court below read that language to mean criminal contempt because the Act was now -- had now been placed in Title XVIII which relates to criminal statutes. Actually, the -- am I reaching what Your Honor had in mind? I certainly wanted to answer. I thought that this would -- now actually, the question of criminal contempt and civil contempt is argued. The court below held that it was a civil contempt and therefore, the jury trial aspect, the jury trial wasn't warranted here. We say that the language in the Act is very clear. We've spelled that out. It says that it applies to all the contempts arising out of a labor dispute, and therefore, a party is entitled to a jury trial under those circumstances and this is where we argued the question of criminal as against civil contempt. And we said that when they put -- even though they put it in Title XVIII, they didn't change the phraseology. It arise -- it applied to criminal as well as civil and the Act was not changed in that respect but they took out that phraseology which related only to Norris-LaGuardia Act. As I said, they broadened it but did not relate it, but did not confine it only to criminal contempt. They held the language that it applies to all cases arising out of labor dispute. And I may say that originally, when the Act was first enacted, the House Bill, the legislative history shows that the House Bill would have it only on a criminal contempt, Your Honor, whereas the Senate proposal had both the criminal and civil contempts involved in the Act. The House changed this position to conform with the Senate so that it apply to all both criminal and civil and for that reason alone, we said that we we're entitled a jury trial. We may entirely request for a jury trial but here again the Court -- I see my time has been up for a while and I haven't covered my all of the point that I had intended to cover, I hope the Court will forgive me for extending my time. I appreciate the additional time.
Earl Warren: Mr. Scanlan?
Francis A. Scanlan: Mr. Chief Justice and may it please the Court. What we have here is a situation where an arbitrator's award was rendered under an interpretation of our contract. This interpretation was supposed to last for the entire extent of the contract. It was not a situation which related to any specific dispute. The arbitrator in a most comprehensive opinion considered all of the contentions which were raised by all of the parties including the contention that was raised regarding the so-called “Inclement Weather Clause”. And I would like to call to Your Honors' attention that on page 24 of the record, the arbitrators specifically referred to the Section 9(h) the so-called “Inclement Weather Clause” and he stated it was the union's further contention that Section 9(h) of the previous collective bargaining agreement remained intact except for the modification contained in Section 10(5) of Memorandum of Settlement so that the award covered all the contentions. It was clear and as a matter of fact, no action was taken by the union to set aside the award for any grounds whatsoever. So the award at the present time, the merits of the award are not subject to review. This is clear under this Court's decisions and the Steel Workers trilogy cases and particularly the Enterprise case. Now, with respect to the facts --
Potter Stewart: But that award just covered the question as to how much money certain people were going to be paid but that narrowly, isn't that correct?
Francis A. Scanlan: Now, the award, Mr. Justice Stewart, actually said that the Employer Association, Philadelphia Marine Trade Association, which is the collective bargaining agent here for all employers, has a right to set-back the gangs without qualification.
Potter Stewart: That's what it said.
Francis A. Scanlan: That's what it said.
Potter Stewart: That's what it said but what would the award do in order to restrain the opinion in the judgment and you are telling me what the opinion said or what the award said.
Francis A. Scanlan: What the award did, Mr. Justice Stewart, was this. Under the old contract, the men were hired on a daily basis. They reported how to shape off. If they were not hired for a particular day, they do not receive any pay. Now, under the contract which the award enforce, they were hired the day before and once they were hired, if they were set-back, they were guaranteed at least five hours pay and the award, when it said that the employers have a right to set-back without qualification with respect to the pay off provisions, it meant this, that all Longshoremen who were set-back for any reason whatsoever were entitled to at least five hours pay and this was something which they do not have before. Now, with respect to the action that was taken by the union after this award was entered, it was quite clear that the union came out. There was nothing nebulous about it. There's nothing subtle about it. The union came out and said that they were not going to abide by this award and the award itself was final and binding. The parties agreed that it would be final and binding. But the union on two separate occasions before this court order was entered, specifically said that they did not like the award; that they were not going to be bound by the award. And that is the reason why this action was taken in the first instance because of the statements that were made by the officers of the union that they absolutely would not comply with this award. Now, at the first hearing, it was admitted by counsel for the union that the union was bound by the award and that in spite of the fact that the arbitrator had ruled against the union that the union would have to comply with the award. This is the reason why the hearing was continued. Now, after that, on September the 13th, 1965 and here is an illustration of what the union actually did. The men were set-back. The gangs were told to report at 1 o'clock but the president of the union took it upon himself to use the microphone at the central dispatching office and he notified all gangs which were set back for that particular day and who were supposed to report at 1 o'clock that afternoon, he told them, “Do not report at 1 o'clock; report at 8 o'clock tomorrow morning.” And he told other gangs, which have been cancelled that day and there was no question about the cancellation rights. These gangs were told to come back the next day. There was no dispute about it. He told those gangs to report for work at 1 o'clock that afternoon. So here we had a most specific violation of the arbitrator's award and it was for that reason that the order was issued at the hearing on September the 15th. Now, this testimony regarding the action by the president of the union was uncontradicted.As a matter of fact, all of the testimony, of our testimony at the first hearing and at the second hearing was uncontradicted, so that the award, the order of the Court was issued, specifically enforcing the award and notifying the union to comply with and to abide by that award.
Potter Stewart: Do you think that the order complied with Rule 65(d)?
Francis A. Scanlan: Yes, I do, Mr. Justice Stewart.
Potter Stewart: First of all, do you think Rule 65(d) is applicable to this one?
Francis A. Scanlan: No, I don't. Rule 65(d) applies only to restraining orders or injunctions. And as I read the rule, first of all, this is not a restraining order and it is not an injunction within the contemplation of that rule.
Speaker: What is it?
Francis A. Scanlan: I beg your pardon?
Speaker: What is it?
Francis A. Scanlan: This is an action for specific performance which is different from the restraining order or an injunction. And even, Mr. Justice Harlan --
Hugo L. Black: What was ordered here?
Francis A. Scanlan: In this case?
Hugo L. Black: In the paper you are talking about, the injunction on -- in quotes. What did it ordered?
Francis A. Scanlan: It ordered the union to specifically enforce the award and to comply with and to abide by that award. Now, with respect to Rule 65(d), even if it is construed to be a mandatory injunction, which this Court has stated in the Lincoln Mills case and the Sinclair case, it's not proscribed by the Norris-LaGuardia Act. I believe that the order still complied with Rule 65(d) because it set forth what the union was supposed to do in clear and unmistakable terms. They were told to do one thing to abide by the award and the reason why they were told to do that is that was the only issue that was before the Court. The Court had the testimony before it as I have stated that the union said they did not intend to abide by the award. They didn't like it. They weren't bound by it and the award simply carried out the testimony that the judge had in which he told the union that it had to comply with this award and it was bound by it. And that's the reason why I think that it does comply with Rule 65(d). Now, as far as the jurisdiction of this Court is concerned, I think that it is perfectly clear under the decisions of this Court that there is jurisdiction under Section 301 of the Labor Management Relations Act to enforce an arbitrator's award. In the Lincoln Mills case --
Earl Warren: We'll recess now, Mr. Scanlan.