Earl Warren: -- Local 20, Teamsters, Chauffeurs & the Helpers Union, Petitioner, versus Lester Morton. Mr. Previant.
David Previant: Mr. Chief Justice and may it please the Court. This case is here on certiorari -- excuse me, to the Court of Appeals for the Sixth Circuit. It involves the question of the scope and applicability of the doctrine of preemption as applied to Section 303 damage cases under the Taft-Hartley Act. The court below has sustained a judgment against petitioner here for actual and punitive damages which is based upon Ohio common law for actual compensatory damages based upon Section 303 and for what is known as a totality of effort rule damages, also under 303. In other words, we are confronted here with, actually, the application of four different measures of damages to the dispute which arose in this case. The facts are relatively free from controversy. I think, the -- there's --
Speaker: (Inaudible)
David Previant: A -- a measure of damages which is known now as totality of effort damages and which the court below said that as long as they were both unlawful, as well as lawful act, it would total up all damages even though the lawful act -- the damages flowing from the lawful acts could be readily ascertained as well as the damages flowing from the unlawful act. The --
Speaker: (Inaudible)
David Previant: I think it is a new concept here. Some of the Circuits appeared to be following it, but I think there's even some question as to what the Circuits mean when they say totality of effort.
Byron R. White: That means (Inaudible)
David Previant: Yes, this -- this has been applied under Section 303 without any reference to the state common law.
Byron R. White: Across the Board.
David Previant: That's right, Your Honor. I say, the facts are relatively free from dispute but there are some question raised here in this Court as to the significance of some of these facts in connection with the application of the damage rule below. The petitioner, local is a labor union in Cleo, Ohio and the respondent, Lester Morton, conducts a trucking business in Tiffin, Ohio and services principally the construction trades. He operates principally, dump trucks on a contract hauler basis with various customers and suppliers. There is no problem here as to whether or not the activities involve interstate commerce. The local union had represented employees of Morton for a number of years, but it never had a written contract. In the latter part of 1956, request was made upon Morton for a written contract and upon Morton's refusal because he said his competitors were not organized, the union went on strike. The strike lasted some five or six weeks. The strike was, in all respects, conducted peaceably. There was peaceful picketing at the premises of the primary employer, Mr. Morton. There was no interference with the ingress or egress at anytime at the Morton premises. There was no violence or threat of violence at the Morton premises. There was no physical injury to person or property at the Morton premises or other places nor was there, as a matter of fact, any violence or threat of violence at secondary sites as well as at Mr. Morton's site. Not all of the employees went out on strike from a force of some 50 driving employees, I think probably some 20 or -- or more returned to work, did not recognize the strike call and during the course of the strike, other strikers returned and the record will show here that the employer eventually wound up with 30 to 35 drivers out of a total complement of 50 when the strike started. The -- the Section 303 violations arose at three different places which Morton serviced. One was a quarry, striking employees followed trucks as they left the Morton premises and went to the quarry and there picketed. The court below found that this was a violation of Section 303 as well as a violation of the Ohio common law, but in as much as no employees were actually induced by the picketing, as -- and as much as there was no actual -- excuse me -- as long as there was no actual termination of work, there were no damages assessed at that particular account, that's France account. Some trucks were followed from the quarry to a Schoen place of business. Thereto, there was a temporary refusal to load and unload, there was picketing at Schoen but there to the court did not find any damages although, it did find that this type of picketing was in violation of Section 302 -- 3 and in violation of the Ohio common law related to secondary boycotts.
Speaker: (Inaudible)
David Previant: I -- I think that we can. There maybe some question not having found a common law violation even if there were no damages because the court below assessed punitive damages but punitive damages is in -- is in the case in any event, the question of punitive damages under Ohio common law. At the third place called O'Connel's, the union had advised the steward that there was a strike. It had not attempted in anyway to persuade or to urge or to induce any other employees to stop work or even to induce the steward to stop work. The steward in turn informed his employer and his employer then determined voluntarily to stop doing business with Morton while the strike was on. In this instance, the court found that because of the termination of O'Connel's contract with Morton, there were $1600 damages and again hereto, this was assessed as being both in violation of Section 303 and in violation of the Ohio State common law. There was another customer of Morton, which was called the Wilson account and Mr. Wilson had entered into a contract with Mr. Morton for Mr. Morton to deliver certain building materials to a highway construction project. The record is clear that at no time did the union ever approach Mr. Wilson directly or indirectly. At no time was Mr. Wilson aware of any secondary or other activities at any place. But Mr. Wilson was informed of the strike by Mr. Morton, who advised Mr. Morton that -- who advised Mr. Wilson that because of the strike, there would be some problem in furnishing to Mr. Wilson all of the tucks which Mr. Wilson might require in order to supply the job in which he was going to embark. The court here, finding that this was lawful, nevertheless in assessing damages, assessed some $9300 in damages on the Wilson account and this is the totality of effort theory, that even though the damages at Wilson could be clearly segregated, even though there wasn't the slightest suggestion of any kind of unlawful activity at Wilson, in fact, not even a telephone call to Mr. Wilson, the court nevertheless said that as -- because of the result of a combination of a lawful strike at Morton's premises and other unlawful activity which took place at the other premises which we have described here, the -- the court had a right under this totality of effort theory to add up to the actual direct damages provable at the secondary sites, with the actual damages not direct provable at Wilson and therefore, under this totality of effort theory, assessed an additional $9300 in damages. The fifth account is the account that's known as the Launder account.
Speaker: Could I ask you a question about the last (Inaudible)
David Previant: Well, it -- it wasn't just that clear. The court did say that it was unlawful and lawful. There -- there's a peculiar line of reasoning that occurred here and -- and it was this, and perhaps we could discuss it right now. There was one witness out of some 23 who took the stand. He had been a member of the union and he inadvertently blurted out that he had voted against the strike, there had been a secret ballot strike vote, but he did not return to work and he was asked by counsel for the employer why he did it.
Speaker: (Inaudible)
David Previant: That's Taulve, that's right, I -- I must confess that there are some confusion in the record as to the spelling of that man's name. I think, we refer to him as T-A-U-L-V-E and he's -- sometimes, we refer to him to the record as T-A-L-L-V-E. Now, he did not return to work and when put on the stand, he was asked, "Why?" And over objection, he testified that number one, he was told that his union card would be pulled if he went through the picket line and then upon urging and prompting, he said, “Well, I noticed that some of the trucks were followed and I was afraid that maybe someone would get hurt.” On cross-examination, and we have set forth at -- this, I think, in considerable length in our principal brief, on cross-examination, he acknowledged that he had heard of no violence, that there was no violence, that he had heard of no problems in following the truck, that there had been no problems at the premises, that he had never been threatened with violence, had he -- that he had seen, I guess in his own words, “I have seen no troubles, there was no trouble.” Now, the court, on this single incident, engaged in reasoning which it had earlier described as fairly fantastic when asked to make the rule at the time of the trial, that since Mr. Taulve had this subjective and obviously unsupportable, indemonstrable fear that something would happen to him if his truck were followed, that must mean that other striking drivers or other people who would seek employment might similarly have this subjective conjectural fear. And therefore, if he had and if others might have it, therefore, we might say then that Mr. Morton did not have a full proof because not only did some strikers stay out as a result of the strike, but some must have stayed out because they were afraid to return. Counsel here argues that the burden would have been on the union in that instance to parade all of the strikers to the stand and to disavow any fear and to say, we're on strike because we're on strike. And of course, it is our position that the incident in and of itself doesn't even begin to meet any kind of a -- the minutest kind of a burden that a court might place upon an employer in that circumstance as to the fact that a subjective attitude, not based upon any fact at all in the record, except truck following which is permissible under federal law. Based upon that single instance, the court then did try to say that this might have infected the relationship between Morton and Wilson in that this may have meant -- this may have been one of the reasons why Morton did not have enough drivers to service Wilson.
Byron R. White: I gather, the court below must not have agreed with you that following trucks was lawful under federal law.
David Previant: I think the court below thought that this was not lawful under -- under Ohio common law. I -- I don't know that there was ever a finding that it was unlawful.
Byron R. White: Well, what is the federal law that makes it lawful in the power structure?
David Previant: The National Labor Relations Act has held a number of times and the cases are cited in our brief that following a truck per se and even truck -- picketing the truck at the time it arrives at its destination does not violate any provision of the federal law. Of course, if the following is attended by other incidence which might tend to detract from the peaceful aspect of this kind of procedure, then there would be another problem. But the Board has held, court says so, that following a truck in and of itself, merely for the purpose of ascertaining the particular place to which that driver is going, so that the union may, at that place, has a -- has a right under the law, either make a direct, personal, peaceful appeal to the customer which this truck is servicing or it even may picket that truck while it is there for the purpose of advising the public and the people on those premises that this particular truck is operated by a strikebreaker or a non-union man. There's -- there's -- therefore, nothing in the record, unlawful or improper which would support any finding that there was some element of illegality at Morton or in the following of the truck which gave to this single man a fear that there maybe trouble and this is the only nexus, the only kind of a relationship that can be pointed to in this record as being the basis for the court's flat holding that it would total the damages which flowed from the unlawful activity and the damages which flowed from the clearly lawful activity and assessed all of those damages against the union.
William J. Brennan, Jr.: (Inaudible) this question of following the trucks ever been brought here (Inaudible)?
David Previant: I would doubt that it -- it may have been lurking in some record here but I -- I could not say specifically that it has been brought here. At this point, I could not say that it has. It -- it may had been an element in other cases which have been brought here but it was never an element --
Byron R. White: That's at least --
David Previant: -- which was called directly to the attention of this Court as far as I know.
Byron R. White: The recent -- the recent -- the most recent amendments of the law.
David Previant: The recent amendments said --
Byron R. White: The -- the most recent amendments never -- had never -- at least since that, it hasn't --
David Previant: No, no and there -- the recent amendments did not change that law in that respect --
Byron R. White: Well, the most recent --
David Previant: -- insofar as the Board and the lower courts are concerned.
Byron R. White: -- the most recent amendments of the secondary boycott.
David Previant: That's right. There's been no suggestion as far as I know by either the Board or the lower courts that those recent amendments, in anyway, would inhibit a following of a truck for the purpose of determining where the -- this truck employer is doing business. I think this is considered as a -- as a wholly peaceful and legitimate activity, as I say, where it attended as in some cases in the lower courts you have a close following of trucks, a -- some traffic hazard involved and maybe some attempt by the use of a truck to cause an incident, I would think then that it would be within the competence of the States to handle that matter as they do all violence or matters relating to breach of the peace.
Arthur J. Goldberg: (Inaudible)
David Previant: Yes, this is --
Arthur J. Goldberg: (Inaudible)
David Previant: That's -- that is true, Mr. Justice --
Arthur J. Goldberg: (Inaudible)
David Previant: That is right, Mr. Justice Goldberg and this is a -- we believe this has been a policy which has been followed rather consistently by the Sixth Circuit, although most of the Sixth Circuit cases were violence cases. It says in this case, if there is state illegality, whether it is violence or not, we see no reason why there should not be an independent assessment of damages based upon that state illegality.
Arthur J. Goldberg: (Inaudible)
David Previant: There is that affirmative finding that -- that -- as I say for, in this Court, there is a suggestion for the first time, going beyond this one instance of a fear of violence, there is a suggestion in this Court that there was some mass picketing initially before the state court issued its temporary restraining order. The record, and we have set it forth again in our reply brief here, is only that while there may have been some 25 strikers in the area of the primary place, the striking was -- the picketing was carried on only by or two or three strikers at a time and after a court temporary restraining order issued by the Ohio court, the -- the number of pickets was kept to those -- to those which has been abolished by the Ohio Court and that is the two at -- at each inference. The lower court nor the Circuit Court made any suggestion that mass picketing constituted that violence or threat to public order which would've justified assessing on the basis of Ohio law. The other account that's involved here, the so-called Launder account, does -- was not -- the activities there were not found to be in violation of Section 303 at all. This poses again a major question before this Court. We believe -- we don't believe it's for the first time however. In the Launder account, a direct request was made by the union to Mr. Launder to stop doing business with Morton during the strike.
William J. Brennan, Jr.: Mr. Previant, may I ask, on -- on this chapter, you said that before this union court might impose, attributed the belief that something said to him by what's happening with Kennedy, who you said he thought was one of the union representatives, was Kennedy a union representative?
David Previant: I -- I would be -- I'd be willing to concede for this purpose that he is. I say that there is nothing unlawful that if this might be termed as threat, is a threat which a union might make to a man who is going to go through a union picket line. Now, I don't believe that that element of the case entered into the court's finding of -- of illegality in the conduct of the union.
William J. Brennan, Jr.: You don't think it's been imposed?
David Previant: No, no, I think -- I -- I think it's very clear from the court's findings that -- that they were concerned with this fear at least -- this is the only way in which they -- as I read the record, they attribute the damages that Wilson, that this man had the fear that if he went to work, he maybe followed and if he is followed, there maybe trouble, therefore, he wont go to work. I -- I would suppose that if that were the theory, it would be more remote and even the -- the one we are discussing because I think that --
William J. Brennan, Jr.: You probably mean that he feared personal injury?
David Previant: Oh, he didn't say a personal injury. He said, “I feared my card would be pulled.” Now, this is a -- is the vernacular that if you are a union man and you do something which is inconsistent with the union standards, they would revoke your membership in the union. That's what's known as pulling the card. I don't think that there was any suggestion that this Mr. Kennedy threatened him with violence. They just said that what will happen to you, will happen to any strikebreaker who's a member of the union. You will be tried within the union for conduct unbecoming a union officer and undoubtedly your membership card will be revoked. Today, this is no longer a serious threat because of the federal law which says, “Card or not, you cannot be removed from your job.”
Tom C. Clark: Be more than theory, wouldn't it, (Inaudible) he says Kennedy told him that we would go to court.
David Previant: Well, again, I -- I would say this would make no difference at all as to whether or not that was illegal conduct or whether it was an illegal threat. Or that it suggested that anything which is contrary to either state or federal law would follow that kind of action. Well, this Launder account, total $8700, that again as I say, it is clear that it has -- has not alleged either below or here that Mr. Launder cancelled his contract with Mr. Morton for any reason other than he was advised by the union that there was a strike and he did not do business with Mr. Morton during the strike. There is no suggestion that this is a 303 violation but it is urged here that this mere request to the employer is a violation of the state secondary boycott law, common law. We challenge that but we have not made any issue of it because as we read the cases cited by counsel, a mere request to an employer does not violate the Ohio case law. We think that the Ohio case law talks about coercive activities directed to the so-called neutral. In this case, however, both the District Court and the Court of Appeals found that this request to Mr. Launder was a violation of the Ohio common law and therefore, the damages in that instance could also be attributed to the union and the union would have to pay that. Now, in addition to all of these, the court, the trial court assessed punitive damages having found that at least three of these instances violated state law, as well as federal law. It applied the law of punitive damages in Ohio which rose out of activities which are malicious or tortuous. Having found that the Launder account, even though not a violation of Section 303, resulted from a violation of Ohio law, it opposed this total $15,000 punitive damages. So your total damages here are some $34,000 and if we were to give to the record the fullest weight which may have to do, there was actually $1600 in damages as a violation of Section 303. All other elements of damages grow either out of this totality of effort rule or out of the alleged violation of Ohio law.
William J. Brennan, Jr.: Now, your position, I gather, is the Ohio law violations can have not -- at least these violations, may not -- have nothing whatever to do within the liability in the 303.
David Previant: That's right.
William J. Brennan, Jr.: Is that right?
David Previant: Precisely, true.
William J. Brennan, Jr.: And that if there is any liability in the 303 at all, it has to be limited to those violations of 303 as a matter of federal law --
David Previant: That's right.
William J. Brennan, Jr.: -- which permits the assessment of damages which in this instance, you suggest was seeking 16 --
David Previant: Would -- would had then $1600 at a maximum. In this instance, if we were to assume that the Schoen account upon which -- the O'Connel account upon which the $1600 was assessed was, in fact, a violation of 303.
William J. Brennan, Jr.: But your -- but your -- your position also is that that was not a violation of (Voice Overlap) --
David Previant: That is our position here.
William J. Brennan, Jr.: And therefore, that no damages would (Inaudible).
David Previant: That's right, Mr. Justice Brennan. That's right.
Byron R. White: So that 303 is the total and exclusive major source of damages in the context set forth.
David Previant: In the context of this case, yes.
Byron R. White: Non-violent, non-violent.
David Previant: Non-violent, peaceful activity which comes either within the arguably protected or arguably prohibited rule or within that area which may not be arguably protected or arguably prohibited but when -- within the area which the -- the Congress has obviously occupied to the exclusion of state action.
William J. Brennan, Jr.: Well, may -- may I ask Mr. Previant, this -- as for this record, I understand your position, is this have to be a pure hypothetical, but if any of these Ohio law violations had been enmeshed with violence, would you be making the same argument?
David Previant: Well, I -- I think the problem I would have to your question, Mr. Justice Brennan, is the enmeshed, the use of the term "enmeshed".
William J. Brennan, Jr.: Alright, take that away.
David Previant: I -- I would say that --
William J. Brennan, Jr.: (Voice Overlap) in the offensive -- in the joiner sense of violence.
David Previant: I -- I think that whatever can be segregated out as violence under state laws relating to the breach of the peace, the union would have to pay for understate standards. I think that is --
William J. Brennan, Jr.: Under -- in a 303 suit, that's what I meant.
David Previant: Well, if the Court has jurisdiction. If the Court has jurisdiction, that's right. Now, whether it's a -- whether it's going to be a pendent jurisdiction or whether the action is brought in the state court --
William J. Brennan, Jr.: Well, that's what I'm -- that's really what I'm trying to get at, would even that, in your view, be the basis for a damage award under 303.
David Previant: It would not be the basis of a damage award under 303. There would have to be the federal action under 303 to which is attached a state action involving violence or in that area which this Court has said, the States are still free to exercise their jurisdiction but if there is no 303 involvement, this then becomes purely a state matter under state law and would never reach even the federal courts unless there was a diversity case.
Byron R. White: But it's not a -- a question of -- it isn't a question of really of -- of jurisdiction over the suit. I don't suppose that (Voice Overlap) --
David Previant: I think -- well -- Unless --
Speaker: (Inaudible) action maybe brought in the state court (Inaudible).
David Previant: 303 maybe brought in the state of federal court but for --
Byron R. White: So you're really just talking about your -- what you call jurisdiction to give a remedy.
David Previant: A power -- a powerful remedy. I -- I think that is probably so. I -- this is a -- I must confess that I'm as confused of the -- I think most --
Byron R. White: Yes.
David Previant: -- law professors are --
Byron R. White: And we are.
David Previant: -- in -- on what is jurisdiction and what is power. There was state court litigation in this case and it has this significance that ultimately, a damage action in the state court based upon state common law was dismissed on motion by the state court. The state court acknowledging that under Garmon, it had no jurisdiction to pursue and to afford a remedy in the state court. This -- this makes it -- makes it very interesting because the Court of Appeals has held now that it makes no difference that the state court has itself, withdrawn from the case, saying it has no jurisdiction. If we're here on pendent jurisdiction, we may give the remedy which the federal law precluded the state court from giving. I don't know how seriously that's argued, I -- and I don't know that we would ever have to get to that point in this case if we are right on some of the preliminary points. The --
Arthur J. Goldberg: This Court (Inaudible)
David Previant: I think this -- this Court has held, I think, in a vigorously contested opinion that Laburnum was a violence case.
Speaker: (Voice Overlap) --
David Previant: Oh, you mean --
Speaker: (Inaudible)
David Previant: Yes, but the question arose in Garmon after 303, I believe and in that case, I believe, the majority of the Court felt very clearly that the original decision of this Court was based upon violence while I believe that dissenter's thought that there were other elements in the Laburnum case which did not make it fairly stated a violence case. But I -- I think that since that time, this Court has consistently treated Laburnum as Russell and others, as cases involving local disorders and local breaches on the please -- of the peace which the Congress never intended to interfere with, if there was some state vindication of -- of such wrongs. The court's – of course our starting point is Garmon and we think Garmon and subsequently, found Garner rule of this case. Garmon, for the -- after the -- this Court's rule that injunctive relief would not lie in the state court for picketing activities directed to an employer from whom the union was seeking recognition, damage would not -- damage action which -- would not lie either because as was I think obvious to this Court that you could not do by indirection through (Inaudible) in damages that which the Court has held was within the exclusive competence of the Labor Board and that this would be merely a way of getting around that particular rule of the Court in the first Garmon case. But if we start at Launder now, we -- we have a case which admittedly did not fall within Section 303, I think that is conceded. At the time that this happened and I believe today, a request to an employer for his cooperation in connection with the dispute which the requesting union is having with that employer's supplier or customer is not a violation of Section 303. This was so stated in the Carpenters case and was so stated last week by this Court in Servette when the problem came before this case as to the extent of the new amendments as they deal with requests made to managerial employees. And this Court said at that time, that neither before 1959 nor in the opinion of the Court since 1959, since the new amendments, this kind of appeal was not intended to be made an unfair labor practice. We would read that this Court has really said that it is a protected activity. The argument is made here for the first time, it was never raised below, that when you make a direct appeal to an employer, since we concede that it is not prohibited under 303, the respondent would urge that it is not protected under Section 7 and that therefore, it falls within that area which is neither protected nor prohibited and therefore, it is at large as far the states are concerned. Now, this is the argument, I say, that is made here for the first time. We think the very obvious answer is that if it isn't protected, it is certainly arguably protected that this is a concerted activity in support of the primary strike and that it would come under the right to mutual aid and protection which is found in Section 7. We read the Carpenters case as saying that, although respondent reads the Carpenters case as saying it is not covered by the statute. In the Carpenters case, of course, it was not a problem of whether it was an unfair labor -- it was problem whether it was an unfair labor practice. It's not a problem whether it was a protected right. The -- and we believe that this Court's statement in Servette just referred to and the cases which we have referred to in the -- in our brief. They make it clear that it falls within the area of arguable protection. I would say it falls in the area of protection that it -- that arguably is even necessary on the basis of this Court's decisions. I would call the attention that even in the Garmon case, although the Court was divided on the full extent of the prohibited protected rule, the facts in Garmon were that there was truck following, unless, perhaps, I'm going to have to amend the statement I made earlier that I didn't recall a particular case, that there was some truck following in Garmon. And I believe that the dissenting opinion in Garmon, said, nevertheless, while it disagreed with the majority on the application of the preemption rule stated by the majority, it concurred in the result in Garmon because in the opinion of the minority, that action was, at least, arguably protected. The action was -- took place in Garmon. So we think that actually, and again, as I would like to amend my earlier statement, I -- I did forget that there was -- it was not raised, it was not an element again as I -- as I say, I think, I have to be honest to say that this Court didn't consciously say, “We believe that following a truck is lawful.” But that element was in the Garmon case in the lower court and this Court in Garmon, applying the arguably protected or arguably prohibited rule, said that the State could not assess damages and the minority --
William J. Brennan, Jr.: Well, I -- I would suppose that would be so if the state of the law the time was, then NLRB decisions although we'd never dealt with it here.
David Previant: That's right.
William J. Brennan, Jr.: That would've made it arguably, I -- I haven't read the --
David Previant: Surely.
William J. Brennan, Jr.: -- NLRB cases you cite, but apparently they had said that following a truck on itself is not an unfair labor practice.
David Previant: That's right, Mr. Justice Brennan.
William J. Brennan, Jr.: May I ask one thing, Mr. Previant, you referred to Servette. I -- I gather that -- is the 303 language -- it is the -- it almost, in terms, the same as what we dealt with in Servette?
David Previant: Yes.
William J. Brennan, Jr.: That is such (Inaudible)
David Previant: Yes.
William J. Brennan, Jr.: Now, what -- what is it that you suggest --
David Previant: Well --
William J. Brennan, Jr.: -- the facts here as comparable to what we dealt with in Servette?
David Previant: In -- In Servette --
William J. Brennan, Jr.: We're speaking of the facts now.
David Previant: Yes, as -- as the Court will surely recall in Servette, the question was whether or not inducement to managerial help --
William J. Brennan, Jr.: Who had authority to exercise that discretion --
David Previant: Yes, was covered by the secondary boycott provision which inhibited inducement to employees to stop working. This Court said that this wasn't inducement to exercise a managerial judgment and therefore, it did not come within the amended law. But in saying so, this Court said and -- and this is at page 4, that's the opinion, "Such an appeal would not had been a violation of paragraph 8 (b) (4) (A) before 1959," which is when this case occurred.
William J. Brennan, Jr.: But what I'm trying to get to, what is the fact circumstance here which is comparable to a fact situation we had in Servette?
David Previant: Oh! Excuse me, a direct request by a union representative to Mr. Launder, the opening of the -- the owner of the company, not to continue to do business with Mr. Morton while the strike was on.
William J. Brennan, Jr.: And -- and -- the -- that is one of the facts here, is it?
David Previant: That is the fact. Now, I will say that on two occasions, respondent tried to show that a company, in that fact, was a threat of picketing. This was ruled out incompetent and is not in their record for any purpose in this case, but I would think that there, you would clearly have then a 303 question at least under present law. You would not have had it even then under 19 -- before the 1959 amendments because again, as this Court has recently reviewed, before 1959, you could both persuade and threaten a neutral.
William J. Brennan, Jr.: If I remember in Servette, the threat did not result in an unfair labor practice only because of the proviso, the 8 (b) (4).
David Previant: That's right.
William J. Brennan, Jr.: But you're telling us now, the threat, if there was a threat here --
David Previant: Well --
William J. Brennan, Jr.: -- it's not part of the case?
David Previant: There -- there is no threat. Yes. I -- I say the record and I -- and I say this because I would hope that -- that when the record is reviewed, it is -- it is more than mine that although there two suggestions that there was going to be picketing at Mr. Launder's. The proper testimony was rejected and neither the lower court nor the appellate court referred in anyway to any threat of that kind to Mr. Launder as supporting any judgment which it entered which embraced damages at the Launder's establishment. They -- they admit that this is a clear simple request to Mr. Launder to stop doing business. They acknowledged that this is not a violation of Section 303. They've urged that it is a violation of the Ohio secondary boycott law and therefore, it is subject to damages because it's within an area which is neither protected nor prohibited. We also argue in our brief that -- and I don't think we have to get that far that whether it is protected, that even if it were not protected or prohibited, it still falls within that very narrow band of cases which are within the field which Congress occupied because this activity is so close and so necessary to the entire process of collective bargaining and that even if you could not point to a specific case saying it's protected nor to a specific case saying it's prohibited, nor the ones saying arguably protected or arguably prohibited, it is, nevertheless, within that large area of labor management relations which has been, we believe, completely occupied by the Congress that to permit the States to operate in this area would be to (Inaudible) that which Congress has done in this area. The -- I think I've already covered principally the -- the Wilson account. That was the Launder account which was based wholly on Ohio law -- oh, there -- there is also in -- in connection with the Launder account, the suggestion of -- of violence that might support even though it is not a 303 but might be -- make it a -- a state but as I pointed out, neither the one witness who testified with respect to truck following nor the record with respect to the number of pickets, nor even findings below with respect to the number of pickets would justify any finding that Launder was in anyway attended by any act of violence or a threat of violence which would justify state jurisdiction for the purpose of -- of damages. And of course, I've already pointed out that if the State has no jurisdiction, it couldn't possibly be that a federal court, under a theory of pendent jurisdiction, can do that which federal law would prohibit the State from doing. The totality of conduct rule is probably the next one that should engage our attention and I think I've already pointed it out that this Cisco case in the Ninth Circuit has been generally cited as a case which hold that where you have both the legal, the lawful and the unlawful, you may then assess damages for both. I think the Cisco case can be read that way or it can be read as saying that the Court found that because of all of the secondary activities away from the jobsite, we had a right to assume that even the activities at the jobsite were directed towards secondary objectives and therefore, we're assessing total damages, but which ever way it can be read, we believe that the court below certainly has no basis in federal law or state law in holding that you -- you look at the total picture if it's lawful plus unlawful, there's a totality of effort by the union here, we'll take the -- the effort in the legal field, we'll take the effort in the unlawful field and we'll lump those damages together. This would, of course, place a -- a possible burden upon the exercise of -- of --
Speaker: (Inaudible)
David Previant: Right.
Speaker: (Inaudible)
David Previant: I -- I believe that is the -- the case that is generally considered, the source of the rules. Some courts have not followed it. We think that the Sixth Circuit is following it, except that in this case, the Sixth Circuit never referred to it specifically. They referred to the old -- to the Story Parchment case, which I think is the confusion between a -- a lumping of damages and a question of how do you ascertain damages. Now, Story Parchment didn't say that if there is a tortfeasor, you're going to lump all of the damages. It -- all it said was if you cannot separate out the damages which the tortfeasor caused from other damages, the tortfeasor cannot be heard to complain that he is being mistreated because he is the one who started it in the first place. In this case, there is no such problem. There's no problem of separating out damages, there's no question about what happened at Wilson. There's no question about the primary strike at Morton and therefore, under any reading of the Story Parchment case, there should be no problem in the lower courts to -- to attribute damages to those activities which are unlawful. Unless, I say, by this amazing (Inaudible) of this one fellow who might be followed, who then might have something, now has a subjective fear and therefore, he --
William J. Brennan, Jr.: Well, Mr. -- Mr. Previant, are you arguing contrary to the Ninth Circuit's Cisco case rather than the primary picketing site by reason of the outside activity becoming secondary --
David Previant: I will --
William J. Brennan, Jr.: -- indeed that the following is itself merely an extension of the primary site?
David Previant: No, I would -- I would not accept any reading of the Cisco case as a matter of fact because I --
William J. Brennan, Jr.: No, no, I'm asking --
David Previant: -- I think it's bad law.
William J. Brennan, Jr.: -- I'm asking if you're arguing that following the trucks is really no different from the extension of the primary site?
David Previant: Well, I -- I think that that is considered by --
William J. Brennan, Jr.: You might get some -- you might get some --
David Previant: -- by the Board and by the courts.
William J. Brennan, Jr.: -- (Voice Overlap) some of the things we said (Inaudible)
David Previant: Well, I would hope so. But actually, the -- the rationale of the Board initially in -- in the truck following, very, very early in the Board's history, it was a refrigerated truck that came over from -- from Brooklyn to New York and they said that these people are actually doing business on their truck, that is the primary site. And it is our position that anybody in the trucking business can't do business anyplace else but on his truck and therefore, we may follow that truck, we may see where it's going, we may then picket when we find it and I don't think that the Board holds to the contrary. I think for a while under Washington portfolio, there were some question but the Board reversed that rule itself and the Board now adheres to what I believe, I have fairly stated here to be the rule. The only other problem, which I don't think should be a problem, is whether or not a state court, under all of these circumstances, can now tax lawful activities with state punitive damages. Now, the law is clear, Section 303 is clear that it is only for damages sustained by the injured party as a result of 303 violations. Punitive damages, historically, are not damages in that sense, they are penalties, they are punishments, it's marked money. This -- this is -- this is what you get for being a bad boy sort of an idea. It is not damages and we can't conceive of any -- of any theory where you have activities which are arguably within the 303 area that punitive damages maybe assessed by a state court. Again, we say that this would be merely another not so indirect method of destroying or at least limiting federal rights which have been given to working men by the federal laws. I think I'll reserve the few minutes I left, thank you.
Earl Warren: You may, Mr. -- Mr. Stauffer.
M. J. Stauffer: Mr. Chief Justice, may it please the Court. I would like to approach this case from a standpoint of analyzing the various damage awards and their various parts and discuss them with respect to those that were awarded under the federal law and then under the state law. As Mr. Previant has said, one element of damages was awarded as a result of Morton's damages at the O'Connel customer's plant. O'Connel was a ready mixed concrete manufacturer and Morton for many years, had been supplying the sand for that operation. Now, a few days after the strike and when the primary picket line at Morton's premises proved ineffective to accomplish the desired result, the Teamsters Union embarked upon a program of secondary activity and here, we find that a teamster business agent went to the O'Connel premises and talked to an employee. Who did he talk to? He talked to a union steward, who happened to be a member of the same union, as we are here concerned with. The Teamsters Union Local 20 represented the employees of that secondary employer and the business agent said to the steward, “We don't want you to use Morton's trucks, we don't want you on -- to,” he said in effect, “We don't want you to unload Morton's trucks until the strike is settled.” Now, we contend that was a proscribed inducement under Section 303. 303 of the Taft-Hartley Act said at that time that it's unlawful for a labor union to encourage or induce the employees, plural, of a secondary employer to refuse to handle goods or perform services for the purpose of causing that secondary employer to stop doing business with this truck employer. So this union steward, the employee of our customer, reported this immediately to his supervisor, the management of the customer. The manager then testified that upon hearing this, he terminated Morton for the duration of the strike because -- because he did not want labor trouble for his company and it's conceded that if damages were properly awarded, the damages were $1600. Now, the Teamsters Union has said two things here as to why this was not a 303 violation. On one occasion, it has been suggested, I don't think in this argument but in the brief, that there was an encouragement of but one employee, the union steward, whereas the act itself, required, at that time, inducement or encouragement of employees, plural. We -- we cited in our brief two Circuit Court decisions which reasoned that if the particular employee, if the only employee that is contacted is the steward of the employees of the customer who can recently be expected to convey the request or demand to his fellow employees that this is, in fact, an inducement of employees and we so argue here. Secondly, it has been suggested that the employer, O'Connel, the customer, terminated Morton of his own volition, that no concerted work stoppage by the customers' employees actually took place. We point to the statute which proscribes an inducement or encouragement. And we -- we say the record is clear that there was this inducement, this encouragement and that it was effective even without the actual work stoppage, it had its intended effect. So we say, therefore, that it's clear that this constitute a 303 violation for which damages were properly awarded. Now, we come then --
Speaker: (Inaudible)
M. J. Stauffer: If this case were decided under the amended provisions, which it is not, of course, we would find here an inducement of the union steward employee of O'Connel who did not have any managerial capacity. Therefore, as I read Servette, it would be a violation.
Speaker: (Inaudible)
M. J. Stauffer: No, sir.
Speaker: (Inaudible)
M. J. Stauffer: Yes, sir. Therefore, the --
Speaker: (Inaudible)
M. J. Stauffer: I think very much different, sir. Here we had -- here -- here we, in fact, do have an inducement of a person who does not have managerial capacities. The fact that he was able to accomplish the desired result by going to management rather than causing picketing there, I think makes no difference.
Speaker: Mr. Morton, $1600.
M. J. Stauffer: Yes, sir.
Speaker: (Inaudible)
M. J. Stauffer: Punitive damages, I think, was overall and was specified separately, of course.
Speaker: (Inaudible)
M. J. Stauffer: The punitive damage award was specified separately.
Speaker: (Inaudible)
M. J. Stauffer: That's correct, sir.
William J. Brennan, Jr.: Mr. Stauffer, did -- is there evidence that the union -- O'Connel Union steward told his supervisor that he, the steward, would see to it that O'Connel employees did not handle goods delivered in Morton's truck?
M. J. Stauffer: That was not stated in -- in those words that clearly but I think from the overall testimony of the manager, he understood that was the danger. He did not -- the manager of O'Connel, after listening to his employee, testified that he did not want labor trouble for his company, the -- the customers' company.
William J. Brennan, Jr.: Which you say, suggests that he thought that if he didn't cut off Morton, his own employees would not handle goods delivered on Morton's truck.
M. J. Stauffer: Definitely, because the teamster business agent had said to his employee, "We don't want you to unload this sand." That -- that has a real meaning, real significance and I think it was pretty clear. Now, we proceed to the element of damage that was awarded because of the totality of efforts rule. I'm going to attempt to demonstrate later that there's nothing at all new about this but let us explain --
Speaker: (Inaudible)
M. J. Stauffer: Totality of the effort and the word "effort" refers to the legal efforts and the illegal efforts.
William J. Brennan, Jr.: Who coined that? (Inaudible)
M. J. Stauffer: I think Mr. Previant is correct that the Ninth Circuit coined that phrase but I'm going to attempt to show that there's nothing new about it.
William J. Brennan, Jr.: It is to me.
M. J. Stauffer: About the phrase, yes, sir.
Hugo L. Black: You mean the phrase is new, but the practice is old?
William J. Brennan, Jr.: Is old.
M. J. Stauffer: I think so. It's a new name for an old practice.
William J. Brennan, Jr.: Well, (Inaudible)
M. J. Stauffer: There's nothing new under the sun.
Potter Stewart: What was the label under the old practice? Maybe I'd recognize that.
M. J. Stauffer: Alright let's -- let's go into that for a moment. Let's -- let's assume that we have a situation where damages have been caused as -- as the courts found damages have been caused by a combination, by a combination of lawful and unlawful activity. That was -- that was the finding here. Morton lost the Wilson job as a result of a combination of two things, the primary picket line and the unlawful secondary activity. Now, an old principle of damages that is where it's impossible to ascertain the amount of actual damages because of something that the wrong doer has done, courts will award the total damages. This -- this has occurred in several situations, so let me refer to two. Let's suppose that -- that I make a -- a product. Let's suppose it's a mousetrap. I -- I put my own material and my own labor into it and then I give it a name which happens to be protected by a trademark and let's suppose that I am -- that I am sued for my profits. Now, this -- this Court has had before that type of situation. The Story Parchment case which the Court of Appeals relied upon, in turn relied upon the Hamilton Shoe case which is 240 U.S. and referred to on page 19 of my brief. And there the -- it was said that the inherent impossibility of an -- of an apportionment between the profits attributable to the use of a simulated trademark and those attributable to the intrinsic merit of the infringer's product is a sufficient reason for not charging the owner of a trademark when suing the infringer with the burden of showing what part of the latter's profits were attributable to the use of the infringing mark, especially where the infringement was not innocent. And the Court in that case, in turn, referred to a situation involving a wrongful confusion of goods. And at page 262 of the Hamilton Brown Shoe case, the Court said that this is the same principle which is applicable to a confusion of goods. If one wrongfully mixes his own goods with those of another, so that they cannot be distinguished and separated, he shall loose the whole for the reason that the fault is his and it is but just that he should suffer the loss rather than an innocent party. So here, we have a situation where truck drivers fail to report to work. Morton was damaged because he did not have enough truck drivers report to work and why didn't they report to work, partially because of the lawful activity and partially, because of the unlawful activity. A particular truck driver who failed to report to work probably knew about both activities and perhaps, they both played the part in his deciding not to work. How is the respondent to show the actual damages? Now, I -- I want to make --
Speaker: That is quite (Inaudible)
M. J. Stauffer: Yes, sir. I want to --
Speaker: (Inaudible) state law.
M. J. Stauffer: That's correct, sir.
Speaker: (Inaudible)
M. J. Stauffer: That -- that last part is -- is not correct, sir. The only element of damage that was awarded under this rule was the Wilson account which was suffered as result of not having enough truck drivers. Now, on the same point, I want to make it clear that damages were not awarded as a result of the strike as a whole which -- which might -- which might be an extension of the totality of efforts rule. Let's look at a couple of situations. One element of damages admittedly suffered by Morton as a result of the strike, but not awarded at all here, was damages flowing from a loss of a job for the Seneca County Engineering Department. There, the Engineering Department of Seneca County learned about the strike and terminated Morton. Now, here, of course, Morton suffered these damages because of the strike, he would have had the work, he would have made the profit, had it not been for the strike, but of course, the -- the Court -- the Court did not award this element of damages to the respondent because he did not lose this element of damages as a result of not having truck drivers and not having truck drivers because of the combination of illegal and legal activities is why the Wilson award was made. So with respect to the Seneca County matter, that was lost simply because the customer learned about the strike and terminated Morton. Now, that was properly not awarded, of course. Now, with respect to Launder, we're going to come to Launder in a greater detail in a moment, but let's look at the totality rule as applies to Launder. In the Launder situation, the record shows that these profits were lost because of an approach by the union to the customer, Launder. This element of damages was not lost as a result of not having enough trucks available. Trucks were, in fact, on the job. Damages there were awarded for a different reason which we shall come to. So the point I want to make clear is that this old concept of damage law was applied only to the one situation where damages flowed directly from a -- from not having enough trucks available and it was the question of why were there not enough trucks available that the Court addressed itself to and -- and applied the Story Parchment, the Hamilton Shoe, old line of damage cases as well as referring, of course, to the Ninth Circuit Cisco case. Now, we submit, therefore, that these two elements of damages maybe affirmed under Section 303. There were Section 303 violations. What were the damages? There's one element for O'Connel where there was an approach to the secondary employee and --
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: I think it is a -- a narrow reading of the record.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: Yes.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: Yes. I think, Mr. Justice Goldberg would agree with me that -- that the keyword is the word "use" on page 122.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: I -- I interpret that word to mean what it -- what it had been meaning in the context of the O'Connel-Morton situation. That context was that Morton was hauling the sand into O'Connel's and O'Connel was using Morton's trucks to receive sand by and the union did not want O'Connel to continue to use Morton's trucks in that sense. Of course, O'Connel's employees had not driven Morton's trucks.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: No, I -- no, I -- I think not, but the union steward was seeking a situation whereby the employees of O'Connel would stop working with the sand that was brought in.
Arthur J. Goldberg: Do you interpret (Inaudible)
M. J. Stauffer: Yes, sir. Yes sir. I -- I'm certain that the lower courts agreed.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: No, sir and further, for the very good reason that he didn't have to. He immediately told his supervisor as he said and that's all it took. And -- and as I previously said, it's the inducement, the encouragement of such -- of -- of concerted refusal to work with the sand that is proscribed. It -- it is not required that it actually take place as I understand it.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: Well, no one is threatened to strike him direct but I -- I think he was reasonable in interpreting the communication to the union steward as a warning of possible trouble.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: That's correct.
Arthur J. Goldberg: (Inaudible)
M. J. Stauffer: That's correct. I believe, Mr. Majors, the supervisor at -- of O'Connel also testified that he did not want any trouble at his plant and that followed by the contact to his employee steward was -- was effective. Now, we will proceed to the common law elements here, one of compensatory damages and one of punitive damages. Several questions were asked by the court. I like to refer to one of them now. The Court, with good reason, I think, has inquired about violence here and threats of violence and what part that played in the lower courts. I think it'd be helpful to keep in mind that four or five or six cases had previously been decided by the Sixth Circuit involving similar situations with one admittedly important difference. That was the Meadow Creek and other cases, I believe, cited on page 30 of the brief. Meadow Creek was the first case in the Sixth Circuit where the -- where state law was applied to grant punitive damages and also compensatory damages. In those cases of actual violence what -- was certainly involved, but I've indicated in my brief by page citations to each of those cases in the Sixth Circuit where the Sixth Circuit said that punitive -- punitive damages did not depend upon violence rather punitive damages could be awarded as a result of a malicious civil conspiracy and so, this case, in the District Court, follow that case. The District Court did not consider that actual violence or violence or threats of violence were necessary to support the application of state law nor the award of punitive damages and the opinion of the Circuit Court, of course, says the same thing. However, we must -- we must look to Garmon. Mr. Justice Goldberg inquired about Garmon and the effect of it upon Laburnum and this comes directly to our argument for the support of state common law here. In -- in Garmon, at page 247 of 359 U.S., the Court said, "It is true that we have allowed the States to grant compensation for the consequences as defined by the traditional law of torts of conduct marked by violence and imminent threats to the public order," citing Russell, Laburnum and Youndahl. The Court continued, “State jurisdiction has prevailed in these situations because of the compelling state interest in the scheme of our federalism in the maintenance of domestic peace” and this is now overridden in the absence of clearly express congressional direction. Now, I -- I want to go to what I contend are threats to the public order in this case. There were -- there was no actual violence that is conceded but I say that if there were threats to the public order that that is sufficient. Now, when the primary picket line was not sufficient to accomplish the desired results, the Teamsters Union engaged in a program of following Morton truck drivers who did go to work. Let's -- let's look at that activity. The work involved required an employee to alone drive a dump truck from Morton's premises at the edge of Tiffin, Ohio to various gravel pits located some distances out in the country, of course, along rural country roads. So the record shows that these truck drivers would go out to these -- along the gravel pits be loaded with sand and then get back on the heavily traveled highways and go on to the customer's construction site or where he was stock piling the material. Now, these load of truck drivers were occasionally followed by carloads as many as five men in a -- in a truck or -- or in a car following the truck. Now, it has been suggested that following per se is not illegal and I would not quarrel with that. I -- I say it's a question of fact. The -- the employee -- the -- the union has a right to know under certain circumstances where the -- this truck employer is working and -- so that he can picket there under rather narrowly proscribed rules. But it certainly does not take a carload of pickets following one truck to find out where the truck is going. I say it's a question of fact. If the -- if the striking union wants to know where the employer is working, of course, in the first case, he -- he could ask him and if information were refused, alright, let him follow him, perhaps, in -- in one car with -- with one driver or two, but there's certainly no need for whole carload of it on these various occasions. Now, what was the effect of this following? The union, of course, derides this witness who testified that he had fear for his personal safety, but this one witness had the courage to say that he was fearful for his personal safety and that was not discredited. It was definitely credited by the trial court. The trial court observed this witness and observed the cross-examination and made specific reference in the finding of facts and in his opinion to the fact that this particular employee was fearful for his personal safety. Now, I -- now, I think we must contrast that type of threat to the activity that occurred in the Russell case and the Youngdahl case which this Court in the Garmon case specifically said involved the types of threats, not violence, threats to the public order that would justify application of state law. Now, in Russell, I referred to on page 33 of our brief and the citation for which is 356 U.S. 634. It appeared that a state court had awarded compensatory and punitive damages in a total amount of $10,000 for the union, by intimidation but not by actual physical violence, denied a worker access to a plant during a strike. There, there was a primary picket line, an employee who was not striking wanted to go to work, he was confronted by some pickets who said that if he was a salaried worker, he could go in, if he was a non-salaried worker, he could not. He was in his automobile. He was satisfied that he couldn't get through peaceably and so backed off and returned home and eventually, lost about $500 in wages, the brief shows and the state court awarded a total of $10,000 compensatory and punitive damages. And this Court said that punitive damages that constitute a well settled form of relief under the law of the State here in Alabama, where there is a willful and malicious wrong and to the extent that such relief is penal in nature, it is all the more clearly not granted to the Board by the federal acts. The power to impose punitive sanctions is within the jurisdiction of the state courts but not within that of the Board. And then in -- in Youngdahl, which was also approved in Garmon, that case approved an issuance of a state court injunction and for our purposes here, if it's proper to apply state law to grant an injunction, it is to award damages. There, at 355 U.S. 131, this Court approved issuance of a state court injunction to the extent that it enjoined a striking union that had not engaged in actual violence against conduct consisting of verbal insults and name calling, that was calculated to provoke violence. There, there was a primary picket line and name calling was -- was engaged in. Now, I would like to call the Court's attention to a comparison of the activities in Russell and Youngdahl with this -- with the situation in our case. In Russell and Youngdahl, the activity took place on the primary picket line. The individual in each case directly involved did not testify that he was concerned for his personal safety and in fact, I don't believe it could be suggested that there was any reason for such a concern and contrast that with our situation, where the courts below have credited Taulve's testimony, had found that he did harbor a genuine fear for his personal safety.
Earl Warren: Did the court specifically find that this truck -- truck following was done in a menacing way?
M. J. Stauffer: Yes, I think that should be answered in the affirmative and that the lower courts found that this resulted in this truck driver being fearful for his safety and therefore, not returning to work. If he -- if he had fear for his safety, I think he was menaced.
Earl Warren: But there was no specific finding that the actions of -- of the following the truck was menacing (Inaudible).
M. J. Stauffer: There was a specific finding that the following of the trucks caused this driver to be fearful for his safety.
Earl Warren: You see no difference between the two.
M. J. Stauffer: No, sir.
Byron R. White: Although that mean that -- would that mean that it -- that picketing in the primary site, outside the plant if some employee decides to stay away from work because he -- he's afraid that if he tried to cross the picket line, he'll be hurt that this following was a violence category and be enjoinable state law -- under state law?
M. J. Stauffer: Well, I think that, Mr. Justice White, would have to be decided within the framework of the Russell case. That is the case where there was a primary picket line and the employee who was not striking tried to go in and it was rebuffed. And there -- there, this Court did award compensatory.
Byron R. White: Yes, but on your theory -- on your theory, all he -- all the employee would have to do is to take a look at the picket line and that be fearful.
M. J. Stauffer: No, sir. I'm -- I'm citing Russell by way of comparison. I'm saying that our situation --
Byron R. White: What else happened in your situation? You just thought -- he just knew that trucks were being followed or thought they were and became fearful.
M. J. Stauffer: Yes, but not -- but not fearful of crossing the primary picket line, which I understood your question to be directed at. Not at -- he was not fearful of simply crossing the primary picket line, but being followed miles and miles into the countryside and I'm saying that if a -- if a state law can be applied to a situation where a person is merely fearful of crossing the primary picket line, surely, it can be applied to a situation that involves what is expected to happen after he crosses and leaves.
Byron R. White: Yes, but in your -- in -- in the one case of being fearful in crossing a picket line and his -- his fear is then preceded by an event --
M. J. Stauffer: What event?
Byron R. White: -- of being rebuffed.
M. J. Stauffer: Being rebuffed -- being rebuffed in a sense of --
Byron R. White: But what -- what event -- what -- what event occurred here which you might reasonably give rise to fear of violence?
M. J. Stauffer: Alright. In the Russell case the rebuff was that he was told he would not be permitted to enter. I think that was it. In the Morton case, the fact is that he actually saw --
Byron R. White: Following -- following, that's all.
M. J. Stauffer: Yes, sir. But he knew --
Byron R. White: And there's no indication that they said anything or did anything to any truck driver they followed.
M. J. Stauffer: But Taulve --
Byron R. White: Is there -- is there --
M. J. Stauffer: No, sir. But he knew to what distances they were followed. He knew under what circumstances they were followed by how many and where, and he knew what his situation would be. I think actions here again speak louder than mere words. He knew what -- what the action would likely be and he was fearful of the consequences. So I think the comparison of -- of this type of activity justifiably, his foundation for finding here of an imminent threat to the public order which would be within the exception of Garmon.
Byron R. White: Why should -- even if you -- even if you thought he's fear was reasonable, why should it be -- why should we assume that other people said the same -- other people had -- the other drivers had the same fear when, as a matter of fact, others didn't.
M. J. Stauffer: Others did not?
Byron R. White: Yes, the others, I take it that -- I take it, the employer always had some drivers who -- who didn't honor the strike.
M. J. Stauffer: He had a few but he --
Byron R. White: Up to 35, is that right or not?
M. J. Stauffer: Yes. He -- he had those not all at once. That -- that was the --
Byron R. White: Yes, but ultimately there are --
M. J. Stauffer: Ultimate --
Byron R. White: -- 35 out of 50.
M. J. Stauffer: -- ultimately, yes. This fear, I think, was not at that time but -- but earlier. It's true that all did not harbor this fear -- this fear but others --
Byron R. White: Why should -- why should it be inferred that anybody but -- but this one man had the -- had the fear? Why should it be inferred that anyone -- anyone but -- but him?
M. J. Stauffer: Well, perhaps, it should not be and I'm willing to concede that it should not be but the --
Byron R. White: But lower court did this, didn't they?
M. J. Stauffer: I don't believe so. I -- and I could answer that definitely not. The lower court carefully used the word "employee", in the singular. Now, this caused one employee to be fearful for his safety.
Byron R. White: Well, and how else did they get a connection between -- between illegal act -- how could they attribute to illegal activity all the damages at -- at Wilson in determination of Wilson contract?
M. J. Stauffer: The Wilson --
Byron R. White: And you -- the only -- the only reason that he couldn't complete a contract with Wilson or thought he couldn't was where -- there weren't any drivers -- there weren't going to be any drivers. Now, the only suggested illegal act causing there'd being no drivers is this one man, I take it.
M. J. Stauffer: No. The -- the court considered these things. It considered this following, this fear of this one person. It also considered the fact that there was secondary picketing going on at other customer's plants which the drivers who went to work would observe. The court also considered the fact that the secondary activity must have had something to do --
Byron R. White: But we are worried about the ones who went to work, we're worried about the ones who stayed away.
M. J. Stauffer: Yes, sir. But the ones that stayed away knew what was going on. They knew that those who did go to work were followed that they encountered secondary pickets at -- at these stockpiles way up in the country, Ohio highway construction products -- Ohio highway construction projects. And the court, I think, properly took into consideration that the primary picket line must not have been sufficient and that the secondary activity must have taken a part because of the fact that the secondary activity was engaged in. Now, a second reason for the propriety of applying state law here is totally self-sufficient unto itself without regard to the Youngdahl, Russell line of cases where it threats the public order but not actual violence is involved. Here, we say that the particular activity complained of was neither protected nor prohibited by the Act. Now, let's demonstrate what the activity complained of was. Here, I am only speaking about the activity whereby Launder was pressured into terminating Morton's trucks. I think this would be a good place to correct a -- a statement, which I believe needs correcting, as to the pressure that was applied to Launder. Mr. Previant suggested that, and I'm referring to page 111 of the record, that when the manager or supervisor of customer, Launder, was testifying, he testified that there had been some threat of a picket line and at that reference to the -- a threat of a picket line was ordered out of the testimony. Now, on page 111, at the top of the page, the Launder supervisor is being questioned about the contact by teamster agent, Larry Evans and the question was, "What did he ask you?" And the answer was, "If there were Morton trucks on the job." "What did you tell him?" "Yes." "What did he say to you then?" "Well, he asked just a minute. There was something about a picket line he mentioned if we continued to use them." Now, I want to make the point here that this answer was allowed to stand. Literal went on to say something about a restraining order, then the objection was made to the restraining order and the court said the answer pertaining to the restraining order may go out. Now, I -- I trust that is a proper correction. Mr. Previant can refresh my recollection.
Speaker: (Inaudible)
M. J. Stauffer: No, sir, page 111. It's our position here that there was a threat to this customer of picketing at his premises and that that was the reason that he terminated Morton resulting in these damages here. Now, I would look particularly at that activity which is complained of here because we have taken great pains in -- in our brief to analyze the many cases in which the court has said that the Labor Board has exclusive jurisdiction to point out that in each of those cases, the activity, the specific activity complained of there was protected or prohibited or at least arguably so. Here, the activity complained of, the threatening of a customer with the picket line in his premises was not prohibited by the Act in 1956. I think as a result of the Tree Fruits case, then it would be prohibited now because as I read that case, that was decided last week, now proscribed as pressure which is designed to bring pressure on a secondary employers business generally, not just on the primary employers product. Here, the threat was against the secondary employers business generally. Other suppliers, other truckers would not come in an order. Now, of course, the specific activity complained of was not prohibited. Of course, if it were, we could recover these damages under 303 itself, so that takes care of the prohibited part. Now, was it protected? We want to refer to Section 7 for after all if this activity was protected, it was protected, as Mr. Previant submits, under Section 7, but we say that the history of that Section, as -- as this Court had said, was to prevent States from treating otherwise the lawful activity as an illegal conspiracy when -- where undertaken by several persons to aid unionization. In other words, prior to 1947, union activity, otherwise lawful, was sometimes held to be unlawful simply because it was undertaken in concert and Section 7 had the effect of removing that concerted weapon from the States. But this Court has said in the Briggs-Stratton case, 336 U.S., "But because legal conduct may not be made illegal by concert, it does not mean that otherwise illegal action is made legal by concert." We say that this type of activity was unlawful under the common law long before Section 7 was adopted. Our cases in common law (Inaudible) go back more than 50 years and because it was unlawful when Section 7 was adopted and because Section 7 did not have a purpose of making unlawful activity lawful, this activity was not protected. Further, we say that this activity was not protected because of the legislative history which indicates that this type of activity in 1947 was intended to be prohibited. We're talking about the difference between a failure to prohibit and an affirmative protection. Senator Taft's off quoted statement is that, "Our committee heard evidence for weeks and never succeeded in having anyone tell us any difference between different kinds of secondary boycotts. So we have so broadened the provision dealing with secondary boycotts as to make them an unfair practice." Now, we say that it's clear that Section 7 was intended, intended I say, to prohibit this but it is clear, of course, that inept language was used to do so and since then, the courts have continually referred to the loopholes in Section 7. That was referred to in 1959 by then Senator John Kennedy when he said that the chief effect of the conference agreement, therefore, with respect to Landrum-Griffin, will be to plug loopholes in the secondary boycott provisions. There has never been any dispute about the desirability of plugging these artificial loopholes. So our argument here is that activity which the Congress failed to outlaw, that failure to outlaw cannot reasonably be turned into an affirmative protection. The -- the question is whether state law can properly be applied. If it can be, it doesn't appear the much serious argument but that the Launder award and the punitive damage award based upon the state common law were correct and for all of these reasons, we submit that the award below should be affirmed.
Earl Warren: Mr. Previant.
David Previant: If the Court please, I'd just like to take a -- a moment to direct myself to the point as to whether or not the picketing threat is in this record. It is true that at page 111 when the objection was first made, the court sustained only part of the objection. At page 114 -- well, at page 113, the objection has then again made that there was no identification of the person who had made the telephone call mentioning picketing and at page 114, counsel for the union again says, “May we have a motion to strike that testimony on the grounds stated," and the Court says that objection will be sustained. Then you get to page 161 at which point again it has stated that there was some talk about a strike at a service Morton's truck. Again, counsel for the union objects, again, the Court sustains the objection. We get to both the -- to the findings of fact, which were drafted by counsel, at the direction of the lower court at page 273 in which the Launder problem is discussed and all that is found by the Court at that point, this is finding of fact 8 (d) -- 8 (b), excuse me, that during the course of the strike and in violation of the restraining order, defendant contacted the management of Launder & Son, Inc. and asked that plaintiff's truck not be permitted to work on such job during the strike. I think the record is very clear that any such testimony is not in the record, have further urged that if it is, that is but one isolated remote incident which would never support any finding here that under Ohio common law, this union is to be taxed for the total damages there. One further point with respect to this Wilson thing, the lower court strangely enough says, "How can you connect it up, speaking of Wilson, with a situation like that, where there are no illegal acts performed, there have any direct connection with his contract with Wilson for his inability to fulfill it? I think," court is continuing, "I think it is so remote that it requires some mental gymnastics to connect the matter up. You may proceed with it subject to striking." I think it's tribute to counsel here that ultimately, the court did consider it as an element of damages but I'm sure that it could not have been on the basis suggested here of Mr. Taulve subject to fear. I think that ultimately, it had to be connected up. It was not connected up. The court at the time it came in did not believe that it was all connected and the court, certainly, in our opinion, had to apply a totality rule there. I will deal the rest of my time to the clerk, who I understand has a problem. Thank you.