Earl Warren: Retail Clerks International Association, Local 1625, Petitioners versus Alberta Schermerhorn. Mr. Lippman you may continue your argument.
S. G. Lippman: Mr. Chief Justice and may it please the Court. Yesterday, I sought to develop the argument that there is a complete integration between Section 14 (b) and Section 8 (a) (3), point being that but for the proviso in Section 8 (a) (3) setting forth the conditions under which a union can obtain a valid union shop or a union security arrangement; but, for that proviso, it would otherwise constitute an unfair labor practice. I sought to point out that 14 (b) was as much a proviso as that which is explicitly stated in 8 (a) (3). It would, obviously, seem quite anomalous for Congress to grant the authority of the States to outlaw, as a matter of substantive law a union shop and then at the same time to say that this is permissible under the proviso. I think any fair reading would indicate as this Court has I think indicated in the first Schermerhorn case that there is the complete interrelationship between these sections. Beyond that I endeavor to point out that when one contemplates the punitive aspects of state enforcement, it would seem utterly incomprehensible and beyond belief that Congress, which attempted to set out this entire scheme of labor relations, would have permitted that kind of conduct. At the point of adjournment, I stated the position as I understood it of the government and we find that we are not as far apart as we thought we were. The government agrees that all conduct prior to the actual execution of the contract, the strikes and picketing and boycott which may take place is preemptive and is exclusively within the jurisdiction of the federal government and I believe it must take that position because of the major thrust of the Curry case. I do believe, however, that the strikes and picketing and the execution are so much part of the same ball of wax that it seems almost arbitrary to draw the line at that particular point. Of course, if my -- if our first contention is correct as I believe it is, that the execution of a law in violation of a state right to work law constitutes an unfair labor practice, I think that would be dispositive of the issue. On the other hand, let's examine some aspects of the government's position, because in our mind the administration of the execution on the application is so thoroughly related to other provisions of the Labor Act that one would be faced with continuous conflicts in substance and in administration and would take this Court years to unravel the puzzle. The first point, the actual exe -- seeking to enjoin the actual execution of a contract alleged to violate the state right to work law would immediately constitute interference with the collective bargaining process. At what point does the state say that there is a threat that a collective bargaining agreement violative of its law is about to be executed. This, of course, must look to the actual processes involved and the collective bargaining involved. Beyond that, we have seen how zealous the States are in finding violations of its right to work law. Indeed as this Court has observed in the Agency Shop Case, the Schermerhorn Case, it would have been best in this situation where there was a question of whether or not the agency shop falls within the proviso to permit the federal government in the first instance to make that determination. We have even a more dramatic illustration of that in connection with the hiring hall situations. The State of Texas, the Attorney General, and some of lower Courts have held that a hiring hall violates its right to work laws. It has enjoined the picketing and the strikes in that connection. A year-and-a-half later, the Labor Board in the case, which we cite in our brief, said that this is a permissible activity, but the union, of course, is still enjoined. Now, what about a question of a discharge under a union security contract and a right to work state? A complaint is filed saying that the individual's discharge because he refused to join or remain a member of the union. The defense of the union and the employer is that he was not discharged for that purpose, but he was discharged pursuant to his seniority clause in the contract. This raised the question of intent and the surrounding circumstances. The very kind of problems that Congress, I believe, has left to the expertise of the Board. If the Court should find -- a State Court should find that the discharge was unlawful it could be wrong, the Board might have come to another conclusion. The Court thereby has interfered with the collective bargaining process (Inaudible) and the Court has interfered with Section 7 rights, because this contract was negotiated pursuant to Section 7. The point being that at every stage in the administration of an executed contract, you invariably come into conflict with the scheme of the federal law. Let's take the example of a minority union, which executes a contract containing the unlawful union security clause in the State. This plainly constitutes an unfair labor practice, because the minority union in the first place has no business negotiating contracts with the employer as the exclusive bargaining agent. It constitutes a violation of 8 (a) (3), it constitutes a violation of other sections of the law. Plainly the Labor Board would enjoin that kind of a contract, it would set aside that kind of a contract, shall we then say that the Labor Board has lost its jurisdiction because it contained an illegal union security clause? Take the situation of a majority union. A majority union executes that kind of a contract and plainly in a minority union case the Labor Board has jurisdiction, but in the majority case it would be urged under no circumstances does the Labor Board have any jurisdiction. But then suppose the majority union is bargaining for such a contract to the point of impasse and then goes on strike to obtain it, the government would recognize that there would be no jurisdiction and the state courts to enjoin that strike. That would be a matter for the Labor Board, but if it succeeded in pressuring the employer into granting it the contract only at that point would the state courts have jurisdiction and by some magic the federal government would loose jurisdiction.
Speaker: What would you -- in this very case, what -- if this case goes back to the Board to enforce it, what would you expect the Board to do?
S. G. Lippman: The Board -- I would expect the Board to issue a cease and desist order. I would expect the Board to find if the violations were serious enough to obtain an injunction under Section (10) (j) and this is a government injunction because there is full relief in that kind of a situation.
Speaker: How is that -- how is that relief conceivably different from what the state court has said?
S. G. Lippman: Well, they relieved -- first of all, the question if you pardon me sir, the basic question is whether or not Congress has regulated this field?
Speaker: I appreciate it.
S. G. Lippman: Alright. The difference relief is this. In a state court not the union would be subject to all damages in connection with the strike including punitive damages if a state were to take jurisdiction in that kind of a situation. In addition to that, if it occurred in the State of Georgia the officials might be very well (Inaudible), there is just that difference which is very, very substantial. Now, I will end my direct statement to the Court by pointing out that in this entire field, there is such a close interrelationship that one cannot permit the states to enter into this field without, at the same time, creating an unwarranted intrusion in the actual application and in the execution of the law. This is a field which I believe Congress has left to the federal government and the idea of any kind of concurrent jurisdiction would actually in practical operations completely oust the federal government of its regulatory powers.
Earl Warren: Mr. Weksler.
Bernard B. Weksler: Mr. Chief Justice, may it please the Court. As we all know the formulation of the national labor relations policy does not only take into consideration the rights and interests of the unions, the rights and interests of the management, the rights of interests of the government. The formulation the national labor relations policy contemplates primarily the rights and interests of the individual working men, that the Taft-Hartley law was characterized as the bill of rights of the American working men. I am here representing for working people from the state of Florida in fact now reduced to one, those three are no longer working for the Food Fair Chain involved in this litigation. We in Florida believe that the right to work is a right to live, the right to be able to obtain money to pay for the necessities of life. And we feel that it is a fundamental right that can only be protected by the Courts and cannot be protected solely by an administrative agency and that is the reason why Florida passed the right-to-work law. Before I go into the situation as we feel it's applicable here I would like to respond to some of the contentions made by brother Lippman particularly in response to the question asked by Mr. Justice Harlan. Mr. Justice Harlan, in the state of Florida we do not have chain gangs where we send union executives or employers if they violate the Florida right-to-work law. In the state of Florida we do not permit punitive damages to be imposed by a Court of Equity. This case was initiated in the Circuit Court of Dade County, the Equity Court. I was the attorney representing the four individual working people at that time. All our Equity Court can do in the state of Florida is grant an injunction to enjoin the execution or application of a compulsory unionism contract which this Court has said this agency shop device or gimmick actually is. The Court can also award an accounting of any at all fees or dues that were coerced or exacted from the individual working men because of this type of a contract. The Court can also award court costs. Unfortunately our Florida Laws do not permit attorneys fees, so the Court cannot even award attorney's fees or punitive damages against a union in this case.
Hugo L. Black: Does it award damages?
Bernard B. Weksler: It can award accounting sir because --
Hugo L. Black: What do you mean by accounting?
Bernard B. Weksler: Well, it can award an accounting in the sense that any dues or fees that the individual working person had to pay in order to hold on to their position that the court will order that money to be returned to them.
Hugo L. Black: But I thought ordinarily -- maybe it's not true in Florida and I am not sure how much (Inaudible) has but I thought ordinarily Court of Chancery could award damages.
Bernard B. Weksler: Yes sir a Court of Chancery in its overall equity jurisdiction does have the right to give complete relief including damages.
Hugo L. Black: And they (Inaudible) couldn't they?
Bernard B. Weksler: Yes in this particular case the Court would be able to give damages in the event the employees had been discharged, the Court would be able to give them damages in the sense of whatever their laws of earnings would have been mitigated by whatever other salaries or earnings they would have had in other sources of employment.
Hugo L. Black: I assume it could give such damages that are ordinarily given for bringing about an unlawful discharge.
Bernard B. Weksler: Yes sir.
Hugo L. Black: (Inaudible)
Bernard B. Weksler: Yes sir, but it could not award punitive damages.
Hugo L. Black: In fact he said it is here so far it has any value, that you could give -- court could award damages, would that be in addition to what the Labor Board could award?
Bernard B. Weksler: The Labor Board is able to have the individual reinstated and have an award of back pay coming to them so actually our Florida Court cannot really give anymore than the --
Hugo L. Black: Ordinarily or –
Bernard B. Weksler: Ordinarily.
Hugo L. Black: Though do not ordinarily completely coincide, I don't know the materiality.
Bernard B. Weksler: No sir, well in the event -- I would say sir that in the event the Florida law did provide for punitive damages and it did award attorney's fees and make the execution and application of this contract as a misdemeanor as some of the states have done, then certainly their remedies would be more drastic than the National Labor Relation Board, but then --
Hugo L. Black: Your argument again for whatever it maybe worth that the -- the argument that he makes is if you could (Inaudible) other states could if your position of the law is correct.
Bernard B. Weksler: Yes.
Hugo L. Black: You could send them to the chain gang if that's a one method of punishment or could punish him criminally.
Bernard B. Weksler: Yes sir.
Hugo L. Black: And that is your argument?
Bernard B. Weksler: Yes sir, I say that was the intent of Congress when Congress passed Section 14 (b) whereon they said the states may have more drastic remedies and that was also expressed by this Court in the Algoma case that the state Courts may have more drastic remedies than the National Labor Relations Board.
Hugo L. Black: I understand that argument, but I didn't understand -- you are trying to answer with the impression that states couldn't do the other.
Bernard B. Weksler: No sir if I --
Speaker: Florida doesn't --
Bernard B. Weksler: Florida does not --
Hugo L. Black: That wouldn't be any answer to it, would it?
Bernard B. Weksler: No sir there are 20 states now that have right-to-work laws, there maybe more states that will have right-to-work laws in the future and I would assume that some of the states in order to prevent the spread of compulsory unionism in their states may have in their laws, more drastic and more punitive remedies than we have in the state of Florida.
Hugo L. Black: (Inaudible) so that issue is in the case?
Bernard B. Weksler: Yes sir, if this -- yes that would be involved in this case Mr. Justice Black. Now, I wish to comment just briefly a question and matter that brother Lippman talked about that was a hiring hall situation in Texas. I believe that there may have been some misreliance placed upon the case because as I understand the case, the Texas Court granted a temporary injunction based upon some verified pleadings that shortly thereafter the union and the employers entered into a stipulation wherein they made a new contract without the hiring hall provision and stipulated that there would not appeal the Texas Court's decision. So it is not a situation, the injunction is still remaining in full force and in effect, the union and management did get together and resolved their problems. Now the question presented to this Court is not whether or not this is an unfair labor practice that the National Labor Relations Board is to be the sole and exclusive tribunal. The question before this Court is whether or not Congress in yielding to the states the right to enact right-to-work laws also said to the states that you have the right to enforce your own laws and certainly it would be a unique, not an eccentric result, but a unique result in the event Congress says to the states, you have the right, you have the continued right to do something that you have been traditional doing, you have the right to do so but you have no right to enforce your own laws. That is something that would be extremely unique in American jurisprudence and there has been no authority cited by brother Lippman to show that there was any other contrary intent.
Hugo L. Black: Was that involved at all in Hill against Florida?
Bernard B. Weksler: In Hill against Florida that was not involved. In Hill against Florida that was where Florida said that a union business agent could not have any type of a criminal record as I understand and this Court held prior to the passage of the Taft-Hartley Act that the Florida could not impose their regulation which would in violation of the National Comprehensive Scheme of labor regulation. It was not a situation of 14 (b) in Hill against Florida. 14(b) had not yet been passed at that time and the Hill against Florida did not involve a right-to-work statute.
Hugo L. Black: But did it or not involve -- I haven't looked at it recently --
Bernard B. Weksler: Yes sir.
Hugo L. Black: -- did it or not involve an insistence that Florida punish a man in a way for doing something which National Labor Relations Act had not authorized to be done and was that based on a holding that in failing to go any further than it did, Congress had barred the states, and was that not the same issue that's been presented here?
Bernard B. Weksler: No Mr. Justice Black in that particular case this Court believed that with the Florida's imposition of law upon the union agent that the Florida was not letting the two parties union and management free to bargain and as a result that would be in violation of the law in existence at that time, but again it did not involve the Florida right-to-work law.
Hugo L. Black: And whether it involved that right-to-work law or not, it involved the principle, did it not?
Bernard B. Weksler: It involved –
Hugo L. Black: The act was construed to saying that the Court -- Congress went this far it intended to go no further and all I am asking is to see if that same thing, it doesn't have to be met here.
Bernard B. Weksler: No Mr. Justice Black, it does not. That Hill against --
Hugo L. Black: But suppose Congress had by its Act intended that the remedy it afforded was all that could be voted because the state had to --
Bernard B. Weksler: If the congressional intent was clear that the state did not add to it, then the principle of preemption would apply. In fact--
Hugo L. Black: So that is basically the issue we have here isn't it?
Bernard B. Weksler: The question of preemption has been raised in this case Mr. Justice Black, definitely. And the question of preemption is resolved by the clear cut congressional intention that Congress did not intend in enacting Section 14 (b), which permitted the states to keep on with their right-to-work laws. Congress did not intend to preempt the right to work. A recent case --
Hugo L. Black: Well is your position -- is this as I -- maybe it's right, I am asking for information.
Bernard B. Weksler: Yes Mr. Justice Black.
Hugo L. Black: But the Act was passed, it provided a way that we are assuming that this is an unfair labor practice, I understood that your – that it provided a way that this should be stopped by administrative agents of the government as an unfair labor practice. It went no further to provide any further punishment or to add anything else that could be done. So you position is that having done nothing else, it didn't intend, it did not intend what it had provided to be all that could be done, but it left it open to the states to add punishment to what could be done in the way of an injunction.
Bernard B. Weksler: Mr. Justice Black I must respectfully disagree with you. It was not the intention of the Taft-Hartley Act to have a right-to-work violation be construed as an unfair labor practice.
Hugo L. Black: Let me hasten the directive saying it as, and my question assumed probably my language lead you to believe, that they did intent that, but suppose the Congress did provide this and that was all that the Act was intended to be done in case of what was done here, what would you say then about the Florida law?
Bernard B. Weksler: I would say that if Congress intended to preempt the Florida right-to-work law, then in that case we would have clear cut preemption.
Hugo L. Black: If it intended to make -- words sometimes are confusing, let's forgot preempt. If it intended, we've fill out here a full and complete remedy, we are entitled to be enjoined and the board can give them back pay or whatever it is and it intended that to be all it should be done in those cases could a state come along and add a punishment to it.
Bernard B. Weksler: No sir, not if that was a limitation that Congress imposed upon it.
Hugo L. Black: So that's our issue here, isn't it?
Bernard B. Weksler: Yes, the issue is whether or not a Congressional intention was to preclude the states from being able to do anything with the right-to-work law enforcement once the state was given the permission to continue with right-to-work laws. That is the issue here. Now in connection with Hill against Florida, in New York we have the case wherein Congress recognized a waterfront compact that was actually between the State of New York and the State of New Jersey, wherein in that compact you have the similar type of provision that Florida had with the Hill versus Florida case, wherein the compact recognized that a person having a felony record could not be able to serve as a business agent, which was the same type of thing in Hill against Florida. And this Court held in that case that the clear cut Congressional intent of recognizing this compact and in recognizing the Waterfront Commission of New Jersey and New York meant that it was intended to not to preempt the power of the state to be able to regulate on the basis of this compact.
Hugo L. Black: Which case was that that you --
Bernard B. Weksler: I think that was DeVeau versus –
Speaker: DeVeau against Braisted.
Bernard B. Weksler: Braisted and that was about two years ago and there was some comment, there was some comment made in the descending opinion that in the sense this case does effectively overruled Hill against Florida. There was a clear cut case of Congressional intention taking care of the matter and that is what we have here today. We have a situation of Congress specifically spelling out in Congressional debates, in Congressional records and in Section 14 (b) that nothing was intended to displace the states in their power to regulate compulsory unionism within the state. Now although the contention has been made that a violation of a right-to-work law is an unfair labor practice it is again clear from the Act itself that Congress did not spell it out that way. If Congress had wanted to make a violation of a right-to-work law an unfair labor practice, Congress would have so designated in the Act that the violation of a right-to-work law is a federal unfair labor practice, but Congress did not do so. Brother Lippman is trying to have that read into the Act, but it cannot be read into there by inference in our position the clear cut congressional intention. Now --
Potter Stewart: They would have put the proviso in the 8 (a) (3).
Bernard B. Weksler: Yes they would have put proviso --
Potter Stewart: That would been the normal way of doing it if they didn't want it --
Bernard B. Weksler: Yes, they would have put in there that in the event, a violation -- in the event there is a violation of a state right-to-work law that will also constitute a federal unfair labor practice. They did not do so and certainly the vociferous opponents of the Taft-Hartley Act would have urged that such a proviso be put in. There was no question whatsoever from the opponents of the Taft-Hartley Act which they characterized as a slave labor bill that the states did not have the right to enact and enforce their own right-to-work bills. In fact the attorneys in Congress certainly would have yelled and complained vociferously if it was believed that the states could pass laws and yet Congress and the Courts would say that the states cannot enforce their own laws. The question now comes up, what good is a right without a remedy? We as attorneys have always felt that if we have a right that we have the right and the power to go into a Court to have our rights enforced. Now unfortunately in non right-to-work states, if a right-to-work violation is committed or for that matter there would be a right-to-work violation was committed, the person who has been aggrieved can only seek relief through the National Labor Relations Board. And if the Regional Director or the General Counsel refused to act on the compliant of the aggrieved party that person has no recourse whatsoever to the courts and that person's remedy has actually been lost because of the failure to act of an administrative agent. In Florida, we would not be deprived of that fundamental right, the right to be granted, the right to be able to work, the right to eat, the right to live. And yet that is something that the union would seek to deprive the individual working men of, that right to be able to go into the Court and get some quick relief. Now we can go into our Courts in Florida, into Equity Court in Florida if the union and management seeks to execute a unionism contract and we can go in there and if that is the issue before the Court, the Court will grant quick relief to us and we will have quick relief within a two month period of time, but if we were relegated to going through the processes of the National Labor Relations Board, which the federal judges characterized as a sort of a slow march, almost analogous to the march of a wounded snake creeping along, if we went into the National Labor Relations Board it takes in some instances at least 400 days before the final decision is rendered by the board. And when the Board finally renders its decision, the Board cannot itself enforce its decision if the Board was to enter a cease and desist order, the Board must go to the federal Courts and obtain an injective, an injunction in the Federal Courts which might take from the time the appeal goes through another 300 days, possibly 700, 800 days goes by before the individual workingmen would be able to obtain effective relief. By that time the matter is merely one of academic interest and the relief and the remedy that the Courts had to protect is something that is meaningless to the average working men.
Hugo L. Black: What would be average time for an equity case before the – Florida First Court and Second Court, Third Court, and maybe up here?
Bernard B. Weksler: We would have, we would be able to, from the time the equity Court would grant its final decree which would be probably within 90 days, we would be able to be up before our District Court of Appeals, which in most instances is a final Court, we would be able to be up there and have it concluded within another six months. Meanwhile we have a situation here --
Hugo L. Black: Federal question, they'd have right to come up here wouldn't they?
Bernard B. Weksler: Yes and I wish to point out --
Hugo L. Black: I'd assume to say that I am afraid that your argument about delay is one and the other is relevant, quite relevant because everybody knows the Courts are rather slow particularly in equity cases.
Bernard B. Weksler: I think that after the Court makes its determination in this case which I hope affirms the Florida Court that there will not be -- the delays that it will be consumed because the determination of this Court will make it clear to the Right to Work state and it will make it clear to unions and to management exactly how their rights are to be remedied by the state courts. And I also wish to point out that the unions would have to put up bonds, unions and management would have to put up bonds and that they might not be inclined to do that whereas in this case it can only point out in this case, this suit was initially started in Florida in 1960. It has still not been resolved and here we are now in October of 1963 and I recognize that if it went through the National Labor Relations Board we might not be here today, it might be in two years from today that we would --
Hugo L. Black: It would not take longer than three years.
Bernard B. Weksler: Well, as I understand it, it does.
Hugo L. Black: Because there couldn't be much difference, Courts are rather (Inaudible) slow many times.
Bernard B. Weksler: Yes and its unfortunate that while the Courts are slow and lawyers are slow that the individual workingman's remedies have not been granted and that is a reason why it's so important for us to be in the state courts, where at least in the trial Court level we can have a quick determination. And I am not saying and I am not saying that the Trial Court would in all instances grant an injunction or grant relief because the facts are going to having to come out and that Trial Court and especially our Florida Courts have recognized strongly the preemption doctrine in all cases that are applicable and they are very, very leery of granting injunctions in union and management cases.
Byron R. White: (Inaudible)
Bernard B. Weksler: At this point I think that I will be veering off slightly from the viewpoint of Solicitor General. I think that the Lower Courts and any right to work state should have the right to enjoin picketing wherein the objective, the main objective of the picketing is to enforce a violation or compel a violation of the Florida right to work law. And I believe that the Trial Court is in a position to determine on the basis of the facts that we brought up before the Court as to whether or not that is the main objective of the picketing situation. So I would go and say that they should be able to enjoin picketing. I may add however that in the --
Byron R. White: (Inaudible)
Bernard B. Weksler: I would say that the hiring hall situation as much as this Court has already said that a non-discriminatory hiring hall is not violative of a right to work law. I will say that the Florida Courts will say that they could not exercise jurisdiction over non-discriminatory hiring hall situation, because the Court would respect the opinion of this Court and the findings of this Court. It -- I would think that the state Court would entertain the case and on an evaluation of the facts brought before the court, if the state court felt that the hiring hall was a non discriminatory situation and was another subterfuge or device or gimmick to circumvent or evade the state right to work laws that the Florida Court would hold that the non -- that the discriminatory hiring hall was a violation of the right to work statute.
Byron R. White: (Inaudible)
Bernard B. Weksler: No, no Mr. Justice White I would like to say so, but I feel rather Florida Courts where that the law would not permit us to do that and it would have to go to the national labor relations board for initial determination where in all probability the National Labor Relations board would under 14 (c) cede the facts to the Florida Courts and say that the Florida Courts that you should be the judge and the arbitrator as to whether or not this is an violation of your right to work law, because under 14 (c) the National Labor Relations Board can now cede these cases back to the state court.
William J. Brennan, Jr.: On ad hoc basis?
Bernard B. Weksler: Yes, yes on an ad hoc basis. That is my --
Potter Stewart: 14(c) in the brief somewhere, what does 14 (c) provide?
Bernard B. Weksler: 14 (c) is a recent amendment to the act under the Landrum and Griffin Bill and 14 (c) provides that the board in its discretion may by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act decline to assert jurisdiction over any labor dispute involving any class or category of employers wherein the opinion of the board the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction.
William J. Brennan, Jr.: That doesn't sound to me like an ad hoc authority, a case by case.
Bernard B. Weksler: The commentators have all referred to it as an ad hoc authority. I believe Mr. Cox will be able to show, state to when he talks about made by rule, or decision, the decision made beyond an ad hoc basis and I believe Mr. Cox will be able to comment on that.
Byron R. White: What the, how do you, how do you handle the Curry case (Inaudible) picketing situation?
Bernard B. Weksler: In the Curry case that was a situation of where there was picketing and conduct. That apparently was under dispute, even though, even through there was some disputes --
Byron R. White: The allegation was, the allegation was that if picketing was aimed at getting the employer to have to hire only union labors.
Bernard B. Weksler: Yes. That was an allegation and that was dispute --
Byron R. White: (Inaudible) kind of thing I understood you say the Florida Court would enjoin?
Bernard B. Weksler: Mr. Justice White I thought that I had stated that in the event of doubt, where, it was disputed set of facts that the Florida Courts (Inaudible) National Labor Relations Board which is what the Georgia Court should have done in the Curry case. The fact that there was an allegation made about a violation of a right to work law, does not ipso facto make it a violation and the court was enjoining conduct in trying to prevent consorted activities wherein the main objective, the ultimate objective was not a violation of the Florida right to work law, but to obtain rights which are permissible under the Federal act. I would distinguish the Curry case on the fact that there were different facts and that it was not solely designed to get around Georgia right to work law, even though as they say peaceful picketing was involved in that case. I say in the first instance that when there is any doubt the state Courts would send it to the National Labor Relations Board and then let the National Labor Relations Board decide whether to cede it back to the state courts and that were in, incidentally the state Courts are to utilize state law once the National Labor Relations Board sends it back to them. Now I wish, I wish --
Byron R. White: Why wouldn't the union, if the union were insisting on bargaining for an agency shop in a right to work state like Florida why wouldn't that be an unfair labor practice on part of the union?
Bernard B. Weksler: It may, it may be an unfair labor practice. I say the Congress did not intend to make it an unfair labor practice by not spelling it out in the act and it may very well be an unfair labor practice, but that still does not mean as in the Smith versus Evening News Association case that a matter may not also be an unfair labor practice at the same time the individual can go into the state court to obtain their rights under contract. If Mr. Justice White, you recall on that Smith case, the unions and management conceded that this was an unfair labor practice and yet they were permitted to go into the state courts to seek their damages for violation of collective bargaining contract. You may have, out of one incident, you may have an unfair labor practice, let us take the violent situation, out of the one incident you may have an unfair labor practice where you can go to the National Labor Relations Board, you maybe able to go into the state Civil Court for damages. You maybe able to go into the state criminal Court for criminal offence, you may even be able to go into the Federal Court if we take an example if the violence was committed by the use of a jack handle that was barred from United States mail truck and there was a situation of abusing government property and have the Federal offense, but the thing is that you may go into the various Courts, Congress did not say that there cannot be concurrent jurisdiction and I submit that if a matter, if as the union contents, I don't know whether or not that would be contented and agreed to before National Labor Relations Board trial examiner, but assuming that the union would agree that the matter is an unfair labor practice, over its own state, we don't agree that it is but if they would so state, there is nothing to prevent the National Labor Relations Board from exercising jurisdiction and also the State Court from exercising jurisdiction under the state right to work law. We conclude by saying that Congress did not empower the National Labor Relations Board to process violations of state laws, but left it to the State Courts and we respectfully ask this Court to affirm the Florida Court and do not permit our Florida right to work law to be mutilated because we cannot enforce our own law. Thank you.
Earl Warren: Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. The prior proceedings in this litigation established two points beyond dispute. Now first the petition is agency short contract violates the Florida right to work law and second the Florida is right to work law is applicable to the petitioners because their operation is affecting the State of Commerce at least in substance. The only question remaining is whether a state has jurisdiction to enforce in some manner because there's been no decree here, to enforce in some manner it's valid and substantively applicable law against an acknowledged violator. We submit that the state has that jurisdiction because of the express declaration of Congress in Section 14 (b) and the case centers around the meaning of that express provision and not what the rules would be in the absence of such provision. The court did raise in its prior opinion an obviously related question which was whether the execution of a contract that violated a state right to work law but was otherwise consistent with the proviso of the Section 8 (a) (3) was an unfair labor practice under the National Act. We think did that question does not need to be answered here because it seems to us that whatever answer is given the Court's disposition on the central question the only one raised by this litigation must be the same. Our answer, it could be material is that the National Act establishes a single national uniform rule and that the contract would not be a Federal unfair labor practice under those circumstances, I should discuss the --
Potter Stewart: How about I -- can sense this in your own time I realize you are just making preliminary remarks, but how about union which insisted at the bargaining table on a union-shop provision in and on, in a state which has such a law would that be an unfair?
Archibald Cox: We would say that –
Potter Stewart: Would that be refusal about --?
Archibald Cox: -- that was a failure to bargaining good --
Potter Stewart: And therefore an unfair labor practice.
Archibald Cox: And therefore an unfair labor practice, I would -- but I'll say it now but I will cut, no doubt I will come myself later.
Potter Stewart: (Inaudible)
Archibald Cox: Let me say that, we suggest there is this difference, that there the state law is the framework within which the parties was to operate and therefore the background against which the Board judges whether they're bargaining in good faith or engaging in protected concerted activities and since they must operate in that background the Board must judge their conduct in that background, but it is not directly enforcing the state right to work law.
Potter Stewart: It's just one of the environmental facts.
Archibald Cox: It's one of the environmental facts.
Potter Stewart: And a controlling one in this --
Archibald Cox: And it would be I think under those circumstances with the facts proved and so forth a controlling one, yes.
Potter Stewart: A what?
Archibald Cox: A controlling fact. As I said I shall discuss two questions in the order in which I stated. It seems to us that the conclusion that Section 14 (b) leaves the states with jurisdiction to punish or grant other remedies for the execution or application of an unlawful union-security agreement is sustained by the words of the statute, by the legislative history, and by the uniform interpretation and practice from the time that have currently enacted, really down to the first argument of this case. Ordinarily, I would think it's appropriate to begin with the words. Here I think the words gain so much meaning from their context and from the background that I'm going to take the liberty of discussing the legislative history first.
Hugo L. Black: That's of which section?
Archibald Cox: 14 (b) Your Honor and it provides that nothing contained in the National Act shall prohibit -- shall authorize the execution or application of a contract requiring union membership is a conditioner of employment in any state where that execution or application is prohibited by state law. And we think this has the effect of reversing the normal rules with respect to preemption, that's the nub of my argument. In the beginning there is no question but that the state had jurisdiction to adapt right to work laws and enforce them against employers and labor unions in business affecting Interstate Commerce. Mr. Lippman keeps speaking as if the question where that was whether Congress had delegated some power to state. Of course the states unquestionably had that power and the question here is whether Congress has enacted legislation which under the supremacy clause somehow takes that power away from the states, by preempting the field. Now the question of preemption first came up with respect to union-security contract in the deliberations on the Wagner Act and it was clearly expressed in committee reports and in statements on the floor by the sponsors of the legislation that it was not the intention of the Congress -- of the statute to interfere with the operation of state law on this subject. The bill does nothing, the committee report said, to facilitate closed-shop agreements or to make them legal in any state where they maybe illegal. It does not interfere with the status quo on this debatable subject but leaves the way open to such agreements as might now legally be consummated.
Hugo L. Black: Did it say anything about sanctions?
Archibald Cox: No sir. It just said there was no intentions that change the existing state law and that it leaves the states, does not interfere with the laws of the several states on this subject.
Potter Stewart: We're talking now about the legislative history of the 1934, the original Wagner Act, doesn't it?
Archibald Cox: That's correct.
Potter Stewart: Not of 14 (b) at all?
Archibald Cox: That's right.
Potter Stewart: Your way back in (Inaudible)
Archibald Cox: Now I come up by 1947 when 14 (b) came into plan there were two reasons for additional concerns about the question of preemption. The first was that in the case of Hill and the Florida, this Court had held that Section 7 and 8 barred the application to interstate businesses of state laws restricting the employees' choice of bargaining representatives and it said that it barred their application, the language is quite interesting, because the collective bargaining which Congress has authorized contemplates two parties free to bargain and thus cannot be frustrated by state legislation. I'm emphasizing that the word authorized by Congress was used in the context of preemption and the reason in Hill and Florida for saying that there was preemption. Of course the argument was made both in this Court in AFL against Watson and elsewhere that the right to work clause could be challenged on the same ground. Congress had authorized bargaining about union-security contract it was said and the argument went on, since Congress had authorized that bargaining that the states could not interfere with it by adopting and applying right to work laws and the contention was and this was so strong argument that it overcame the legislative history that I referred to earlier. The other reason for concern in 1947 was that about the danger of preemption. Was the Congress intended to legislate the subject to Union security far more comprehensively than it had done before? Now if closed shop contracts would be outlawed, the discharges on the union security contracts which would be lawful were to be limited and in the original Taft-Hartley Act, Your Honors will remember, there was also a provision calling for a vote of the employees to authorize the bargaining representative to negotiate a union shop contract, unless there was such a vote the authority would not be granted, the contract would be an unfair labor practice.
Potter Stewart: It was in the statute till 1951, wasn't it?
Archibald Cox: Yes sir, from 1947 I think it was 1951 it was repealed, it was subsequently repealed.
Potter Stewart: But it was there for a decade or more.
Archibald Cox: It was there, that's true. No not a decade.
Potter Stewart: No, no if you please --
Archibald Cox: Oh, yes it stayed for a year.
Potter Stewart: That's right, that's right.
Archibald Cox: Alright with these two additional reasons for concern about preemption the house labor committee brought into its bill a Section 13, which appears on pages 20 and 21 of our brief, which is so long and cumbersome that I can't read it in Court, but it's worth finding out over on page 21 that it stated, all such agreements that is union security agreements insofar as they report to impose such requirements contrary to the provisions of the law, or constitution of any state are hereby divested of their characters a subject of regulation by Congress, skipping a few word, to the extent that such agreement shall in addition to being subject to applicable preventive provision for this act the subject to the operation and effect of such state laws in constitutional provisions as well. No doubt from that language that it was intended to negate any inference of preemption from the Congressional regulation either on this express subject or from the more general provision dealing with the right to bargain collectively. If there were any doubt it would be, it would be negated by the committee report. The committee said over on page 22 of my brief, by Section 13 the United States expressly declares the subject of compulsory unionism, one that the states may regulate concurrently with the United States. In the face of that one, one just couldn't conclude that there was any preemption I think. The bill went to conference along with a senate bill but had no provision dealing that over lapped with Section 13. When the bill came out of conference the language of Section 14 (b) was there and Section 13 of the house bill was gone. But the history makes it perfectly clear that all that Congress did was substituted a far similar declaration in Section 14 (b) for this extraordinarily cumbersome recital in Section 13 of the house bill. And this was made perfectly plain again. The house conference report on page 23, I am about the middle of the page, it was never the intention of the National Labor Relations Act to preempt the field in this regard, so as to deprive the states of their powers to prevent compulsory unionism to make certain that there should be no question about this, Section 13 was included in the house bill. The conference agreement in Section 14 (b) contains a provision having the same effect, there can't be any doubt I think about the meaning of that statement, having the same effect. In the senate, the senator Taft who of course gave the chief exposition of the meaning of the conference report directed himself to this express -- to this subject expressing, he referred to the Wagner Act and to the closed shop proviso and then said, but that, referring back to the proviso in the original act, did not in any way prohibit enforcement of state laws, here the language is terms of sanctions Mr. Justice Black, did not in anyway prohibit enforcement of state laws which already prohibited closed shops. That has been the law ever since that time, speaking of the Wagner act. Then looking to the new --
Hugo L. Black: Where are you reading from?
Archibald Cox: The bottom of page 24 of my brief, where I am quoting Senator Taft's exposition of the conference agreement on the floor of the Senate. I pointed that he used a word applicable to enforcement and that goes to enactment when he spoke of state laws. Then he went on after having spoken of the Wagner Act and said that has been the law ever since that time. It was the law of the senate bill, he thought 14 (b) was unnecessary and in putting in this expressed provision from the house bill, we in no way changed the bill as passed by the senate, taking of course his interpretation of the senate bill which he said had the same effect as Section 13 of the house bill, even so it didn't the express declaration. In the face of that history we submit that there can be no question about the intent of Congress in enacting section 14 (b).
Hugo L. Black: May I ask you if there is anything specially said with reference to the right of the state to punish or to do something to people who violate that provision except what you are quoting?
Archibald Cox: Only, only equally general words, the word that prevent, to prohibit, enforce, regulate concurrently there is no express mention.
Hugo L. Black: Did nobody mention it?
Archibald Cox: Nobody mentioned it.
Hugo L. Black: Did they mention in Hill versus Florida and say they want to elude it?
Archibald Cox: I think it was clear that they did not wish to overrule it, as applied to other provisions of the National Labor Relations Act.
Hugo L. Black: Well is it clear that --
Archibald Cox: I think it is equally clear that they did not wish it to be applied in the field of union security.
Hugo L. Black: Where is there any statement to that effect?
Archibald Cox: There is no --
Hugo L. Black: I am talking about general and abstract statements?
Archibald Cox: There is no expressed statement, we do not --
Hugo L. Black: Then you first mentioned of it--
Archibald Cox: And there is no, that was mentioned on the floor I think, but I know going by memory and not by anything that I have immediately in front of me, there was mentioned of cases like AFL against Watson, where it was argued that Hill against Florida applied to this subject and it was quite plain and it did, I think explained from the language 14 (b) Mr. Justice Black that they had Hill and Florida in mind because --
Hugo L. Black: I find it difficult from that language, because there is maybe this other as far as asking if there is anymore, besides the general --
Archibald Cox: No, but I think the language of the statute itself, I think it's a fair inference though I can't prove it, that when the Court had said, that the reason for preemption in Hill and Florida was that Congress had authorized a certain type of collective bargaining through representatives of their own choosing and therefore the states couldn't interfere that when Congress came to prevent preemption in this area it said that nothing in the act shall be construed to authorize.
Hugo L. Black: Authorize what?
Archibald Cox: The execution or application of union security contract in fields where there -- in states, where they are prohibited by state law. I would, I would think--
Hugo L. Black: Well I think we sustained that in two cases in this Court, the right of the state have such a law.
Archibald Cox: And to apply it in the Algoma case.
Hugo L. Black: Did we, did we sustain the right in the one from Nebraska the other where the state imposed a different kind of punishment, I don't recall.
Archibald Cox: Those were cases in which no question of Federal preemption or Interstate Commerce was raised. In the Algoma case where you did sustain the right of the state to grant a remedy and sustained it both under the Wagner Act and under the Taft-Hartley Act, because there was an argument about which applied, the state was allowed to frame its own remedy the substantive law was different from the Federal law. The remedy was probably the same as the Federal board would have granted in Algoma it was certainly the same general character. I would also like to again Mr. Justice Black to suggest here that what Congress was doing was negating an inference of preemption and if they negated that inference it certainly goes to the enforcement in carrying out the state law –
Hugo L. Black: (Inaudible), I don't get there, that's where I'm stuck on your argument. Why does it follow if they wanted to permit the state to outlaw this kind of contract they also wanted them to ask to the sanctions against it which the Congress has provided?
Archibald Cox: It doesn't necessarily follow; it could have been done the other way, it seems to me that the probabilities are very strongly against it. We start, I think that no one would dispute this, we start as I suggested before where the situation in which the states may do both and until something happens to show that the states have been deprived of the power to do both, they have, then the question arises.
Potter Stewart: By doing both you mean what, outlaw them and enforce --
Archibald Cox: Substantively and carry out their own laws. Yes excuse me.
Hugo L. Black: That's when the Congress has no law.
Archibald Cox: That's right.
Hugo L. Black: Which either outlaws it provide the particular punishment against those who do it.
Archibald Cox: Well then if the Congress says as was clearly said in the discussions and as I think 14 (b) says, we don't intend to preempt the field. We intend to leave the situation that would -- as it would be if we had legislated it all that then it follows that the status quo continues and the states may do both.
William J. Brennan, Jr.: Well Mr. Solicitor General, do I correctly understand your brief you are arguing here, if there had been executed in outright closed shop, clearly a violation of 8 (a) (3) then in that circumstance is the matter only for the Board and not for the State Courts in the right –
Archibald Cox: No.
William J. Brennan, Jr.: You don't argue that?
Archibald Cox: I do not argue that. Our brief skirts the problem. The logic of our -- I would come to it. We didn't mention that expressly, because I don't think it has to be decided here. Our position would be that the state might deal with the closed shop. That's the logic of our argument as we made it here.
Byron R. White: Even by adding an additional --
Archibald Cox: Even by adding an additional section. Now let me say two things about the problem with sanctions. In the first place when I speak of adding an additional sanction I do not include adding sanctions which would profit Federal rights. For example it's quite clear that a state could not provide that no union which has ever executed a unlawful right to work law may act as a bargaining representative in the State of Florida or Nebraska or wherever else, there is a long line of cases to that effect not just in the labor case. But leaving that to inside, it would seem to me that if Congress is willing to allow the states to enact their own substitutive law in this area allowing them to provide their own sections is a comparatively a minor addition.
William J. Brennan, Jr.: Well that would include of course that in the imposition of criminal sanction.
Archibald Cox: Yes, yes.
William J. Brennan, Jr.: Which would (Inaudible) and the union representative wouldn't --
Archibald Cox: All ready implied or just as if they committed robbery or burglary or discriminated against people on grounds into a race or color, violation of a state statute.
Hugo L. Black: Suppose Congress, suppose if they prepare a law of making it a crime, to violation of provision do the Interstate Commerce Act, what would think? They had provided our own sanctions of the committee.
Archibald Cox: Well I believe the Interstate Commerce Act has usually been held to occupy the field, but here we have an expressed declaration the other way, if Section 14 (b) where --
Hugo L. Black: May I say this, you say an express declaration. I simply in order to understand by not asking you about it, I do not understand that and I cannot possibly read Section 14 (b) to be an express declaration that they can had punishment to --
Potter Stewart: Third position Mr. Solicitor General if this an adding punishment because it's your basic position that this is not an unfair labor practice and that there is no Federal sanction therefore, isn't that correct?
Archibald Cox: That's true.
Potter Stewart: So if this is an adding a cumulative punishment, this is a matter of state law, not a Federal law?
Archibald Cox: That's our basic position. So I would make these Mr. Justice, I would be making the same argument however you decided the underlying question.
Hugo L. Black: Do I understand from that that you mean that the Congressional Act itself would not authorize the Labor Board to do something to somebody who made one of these contracts in violation of law.
Archibald Cox: If it is only in violation of state law and conforms in all other respects to the national law, I would say that the national government had no --
William O. Douglas: There is no place of the (Inaudible)
Archibald Cox: Well it depends -- it then would be otherwise in violation of national law.
William J. Brennan, Jr.: Well what happens in the circumstance?
Archibald Cox: In that case the National Board could deal with it.
William J. Brennan, Jr.: With its limited from of with its limited –
Archibald Cox: With its limited revenues, yes.
William J. Brennan, Jr.: But the State Court you suggest now could also deal with it with the harsher remedies of whatever --
Archibald Cox: Yes, yes. After all Mr. Justice it's like normal organization in our Federal system is that a national agency enforces the national law and it does not undertake to enforce as such provisions of state law. Now Congress may have to regulate comprehensively to occupy the field or it may as it sometimes does leave it to the state. When it does leave it to the states it is always left it to them both to enact and administer the law. The suggestion here is an utterly unprecedented arrangement to the best to my knowledge. Certainly the situation in Federal enclaves has no resemblance to it, because there it's a lack of territorial jurisdiction. I would suggest --
Hugo L. Black: I had thought maybe I'm wrong, this Court has said a number of times that where Federal Government does something making it an offense, we will certainly not strain ourselves to find that the state can make the same thing another offence whatever we might decide about --
Archibald Cox: Well I think that the cases go various ways on that as they do in the preemption area. I find myself that I confess in an unfamiliar position here. I've normally argued very strongly for preemption. I've argued that Section 14 (b) should not have been in the statute and if I could have my brothers on either point, I'd be arguing those views now, but it seems to me that the whole history of labor law and the discussion in Congress and the holdings of this Court show that 14 (b) was intended to have the other meaning. The question after all came before this Court in 1948 in the Algoma case and the Court squarely held then with the Taft-Hartley debates consideration fresh in it's mind that Section 14 (b) made it even clear than it was under the Wagner Act as the Court put it that the states are left free to pursue their own more restricted causings. Section 14 (b) was intended to first all the inference that Federal policy was to be exclusive and Justice Black and Justice Douglas dissented chiefly on the ground that the state should not be permitted to punish somebody for carrying out a contract that a Federal Agency had required him during the war to execute. In Justice Black opinion that says this Taft-Hartley Act expressly granted the states more leeway in regard to enforcement of their own policies, enforcement of their own policies as to contracts of the type here involved.
Hugo L. Black: Now I may say that again when you use my sentence it shows we cannot ever confine the power --
Archibald Cox: (Inaudible)
Hugo L. Black: To restrict our views. I would think even now retroactively speaking and when I say the Court put policies it meant that they didn't intend them keep them from having a closed-shop law. I wouldn't think that implied that could add punishments to the government (Inaudible). I would divide the two into separate segments in connection with consideration of what the state could do.
Archibald Cox: Well, of course I said, hope I said before all right I would have to recognize that this is an imaginable way for Congress to go at it. I suggest you that everything points in the other direction. I would like to address myself if I may also we've covered it in the brief to the problem of the Curry case and the problem of the strikes picketing other concerted activities generally. I think I do it best by taking the Curry case Farnsworth Chambers' case on the one side and contrasting it with this case and the Algoma case on the other. Now both Curry and Farnsworth and Chambers grew out to what essentially was a controversy over union organization's bargaining right. In Curry the employer was not employing Union labor and had no contract with the building trades in that area. There was a dispute over just what the union did say and just why they started picketed and the Florida Courts found that the aim of the Union was to procure the employment of union labor and therefore issued an injunction which this Court reversed and held that the National Board had exclusive jurisdiction. Now Farnsworth & Chambers is essentially the same, the same case. It again was a dispute over union organization in bargaining rights although the precise evidence was a little different. We think there are three differences between that situation and the situation in this case and in the Algoma case. In the first place, in a controversy over Union recognition organization bargaining rights, there is a very real chance that the state will interfere with the declared Federal, may I continue a minute Mr. Chief Justice, will interfere with a very carefully written Federal policy. The Federal statute in Section 7 and 8 guarantee certain rights to engage in concerted activities. It prescribes certain activities but leaves others unregulated. This manifestly was done with considerably subtlety and sensitivity and of course as Mr. Justice Black suggested earlier, the failure to proscribe some kinds of conduct, guarantee of the right to engage with others, implies that what was not proscribed was intended to be left free and that as Justice Jackson said in the Garner case is the fundamental reason for preemption in this area in the absence of some other evidence to come. Second even in those cases there was a sharp controversy about the facts. There always is in that in the controversies where there is picketing for organizational purposes. There have been no formal submitted negotiations and demand. This conflicted testimony and there was a real chance therefore as always a very great likelihood that the state court will come to a different appraisal of the fact than the Federal board and frustrate rights guaranteed by the Federal act. Third there is really in those cases only a remote problem affecting the state's law concerning the execution or application of a collective bargaining realm. Union had been recognized, there had been no bargaining, there had been none of the give and talk and sacrificing of the demands that takes place in bargaining, so that the conduct created only a very slight if any danger of frustrating the state policy. Now in this case as in the Algoma case one has just the opposite situation, but the contract had been executed its terms are before the Court and indeed in Algoma also apparently not here some one had been discharged under the contract. Now this case did not go to judgment in the lower Court, the trail Court in favor of the plaintiffs, so we don't know what remedy would have been granted and certainly they are entitled to go back if there is any remedy. It seems to me there is not the slightest room for doubt, but that a remedy could be framed which would not interfere in any way with the area of strikes and picketing. Indeed the core of the relief they request is a declaratory judgment and the injunction against discharging anyone and an accounting for money's collected which of course is in effect an application of a rule of damages. It -- there is no real likelihood of interference with strikes at all. So we think that one way of separating the Curry case and that problem from the problem of execution and application of a union security contract is to say yes, the states may deal with the execution and application, but they can't deal with the area of strikes and picketing.
William J. Brennan, Jr.: Well what do you think of advise to Mr. Weksler, are you suggesting that 14 (c) might permit the Board (Inaudible)
Archibald Cox: That's first time I had heard that suggestion. I might say it was the last thing in my mind when I wrote 14 (c). The general purpose -- [Laughter]
Speaker: (Inaudible)[Laughter]
Archibald Cox: If I may say Mr. Justice? The purpose of course of 14 (c) was to deal with what was known as the no man's land created by the Gust decision, the area in which the board was unwilling to exercise its jurisdiction yet it had been held that the --
William J. Brennan, Jr.: Well I think you are a very good one to ask that since you wrote it, it surely it didn't extend on the ad hoc?
Archibald Cox: No. No there was certainly no, well of course there is an English House of Lords case, perhaps Mr. Colin will remember it where some one said, the worst way to find the meaning of a statute is asking the man who wrote it. But I, there is no evidence, no evidence that Congress had any thought other than dealing and it says by rule or rule of decision because the board had not issued rules regulation, also I always thought they should, that's why they've got in. The rule of decisions were broad rules of decisions that they would announce in lead opinion. So that was all that was intended to do. The -- there is room for a suggestion that where a union strikes for the purpose of compelling an employer to do something unlawful that there is an anomaly in any rule of law that says, well the state may again punish the employer as he does it, but it cannot do anything to the union that's trying to make him do it. Our answer to that is at first that as Justice Stewart said yesterday, if Congress wishes to create such an anomaly that's the end of the myth and there is bound to be under our system of government and particularly in the field of labor management relation, some places where the joints between state law and Federal laws, after all the state laws do apply to some extent to labor unions and the employer and there are always going to be problems in bringing the two together. Third, second I guess it is, we would say that the anomaly isn't really very great. I have spelled out in my brief that there are remedies in merely all the situations that can be embedded under the National Act. So the employer is not going to go save in one very rare case without any protection at all. The third answer on this point I think is that the Court needn't decide here the exact scope of state power in relation to strikes and picketing. If the line of distinction I first suggested seemed dubious then there is a second possible line of distinction and that is with the states power extends to the case where the union is unequivocally here and now seeking to compel a violation of state law, but then it does not go back to the more remote sort of thing involved in Curry. I prefer the first time myself with the others, you know, possible one and so that we think that there is no serious danger of conflict or confusion between the state law and the national labor policy in this area. I am afraid that I have pressed this too much on the Court's time. I will leave the other issue that the Court raised whether this is a Federal unfair labor practice to submission on our brief.
Earl Warren: Mr. Lippman you may have five minutes extra if you wish to --
S. G. Lippman: Well I would take it sir, I think I just a few remarks to make. I think the Solicitor has candidly discussed the matter and I think it has resulted in enlightenment and the point that struck me was his acknowledgement of course that the execution of a closed shop contract is an unfair labor practice, clearly an labor practice but at the same time he would not commit the Federal government to force it, but it would be left to the states.
Speaker: (Inaudible)
S. G. Lippman: Well in that case and of course you would have, you would have concurrent jurisdiction as to whether in fact it is a closed shop, you would have contrary findings of fact, you would have all the I am sorry if I am misunderstood Mr. Solicitor, you would have all the mischief which Congress has -- which this Court has recognized in the more 20 preemption cases. The Solicitor relies on the legislative history, but where in the legislative history can he find what he acknowledges to be a correct rule of law that the states cannot interfere with strikes or picketing or other activities seeking to obtain a closed shop or a union shop. If one were to take his legislative history this would indicate of course that Curry is wrong and finds within Chambers is wrong. You cannot rely on these broad generalities thing. Indeed contrary to the suggestion contained in the Solicitor's brief Curry and Farnsworth and Chambers were extensively briefed. The very same arguments that the Solicitor has made, the very same reliant on the legislative history were before this Court when it Curry and Farnsworth & Chambers. Now I think that the best one can do relative to legislative history I think is to refer to the distinguished Solicitor's article in the Harvard Law Review in which he says it is folly to search for straw and statute a legislative history suppose to point to what went on the minds of an imaginary congressman, deliberating on a question that no one actually considered. Problems of federalism ought to be decided upon explicit considerations of the factors entering into a determination of policy, viewed from the standpoint of one sympathetic to the National Labor Policy embodied in existing legislation. The practice would not only lead to sounder solutions but would also encourage discussion helpful to the court in future decisions and leading to a more informed opinion legislative review. Of course this was Professor Cox talking and not the Solicitor of United states. Referring to the legislative history --
William J. Brennan, Jr.: I guess we could find unless to those everyone on this bench --
S. G. Lippman: I imagine itself --
Byron R. White: (Inaudible)
S. G. Lippman: The Solicitor's reliance upon section 13 of the house bill, it's quite true, Section 13 of the house bill attempted to establish some concurrence jurisdiction, but the important thing about it is that it was never accepted in conference. It was completely rewritten with a completely different intent. What emerged is 14 (b) which definitely ties in to 8 (a) (3) because it says nothing in this Act shall authorize the execution or application of a contract which is violative of state policy. Now this in the strongest measure relates 14 (b) to 8 (a) (3) and it seems inconceivable that Congress would have told the states that you could outlaw this as a matter of substance of law and then say that this not an unfair labor practice. I think I have demonstrated in my argument, my opening argument of the relationship between Section 14 (b) and 8 (a) (3). I believe the brief of the government acknowledges that this is a warranted interpretation. You will find nothing in the brief which would anyway militates against their point of view. So summarizing let me say, one, I believe the execution of any union security agreement violative of state law is an unfair labor practice. The Congress met to integrate that into 8 (a) (3) and that is much a proviso of 8 (a) (3) as every other provision. Beyond this you will not find a single word in the legislative history that Congress had any kinds of awareness or consideration to permitting punitive state power. Indeed it is not have to appear there because the intent of 14 (b) was to integrate it in to 8 (a) (3) and 8 (a) (3) of course provides the cease and desist orders. I therefore submit --
Potter Stewart: Congress picked an awfully funny place to put it if it wanted that to be an additional condition of 8 (a) (3) isn't it?
S. G. Lippman: No because 8 (a) (3) in this language would (Inaudible) because 14 (b) in this language refers explicitly to 14 (b) -- let me start again because 14 (b) in this language explicitly refers to 8 (a) (3) and to Section 7. Section 7 says that employee shall be free from any (Inaudible) except where authorized 8 (a) (3). Actually there was another section called 8 (b) (4) of the house bill. That section specifically say this that would it be an unfair labor practice. It was so held and that's referred to in the briefs sir, but the senate recognizing the mischief which is the house was up to and conference would have anything of this and they rewrote Section 14 (b) and rewrote Section 8 (b) (4) into what is now Section 8 (a) (3) and it therefore seems to me that the legislative history as a whole demonstrates what I think is clear in the report which the house made following the meetings in the conference. In the house report following the conference there isn't any reference any longer to any concurrent jurisdiction. The only reference you find there is that we have made sure that the Labor Board administering 8 (a) (3) and the proviso of 8 (a) (3) would not permit any kind of shop arrangement where we outlawed it in our states and this is the total effect. What we proposed gentlemen is a simple system, which work well because all the board has to do is to consider this as part of the substantive law then you will have one agency administering the law in every state, it received uniform interpretation. It is not dependent upon hundreds of different judges sitting throughout our land. Your penalties and your remedies will be equal. You will have sound administration and you will be able to carry out intent of a state where they say that a union shop is against the policy.
Hugo L. Black: Suppose you are wrong in your argument that this is not bad labor practice, what's your argument then?
S. G. Lippman: If I am wrong that this is an unfair labor practice, then I believe that the entire area involved because there are radiations in administrations which will inevitably interfere with the administration by the board. I will recognize though that I am wrong in my argument the basic platform upon which I rest was false. My argument is that this is a matter of Labor Board concern, of congressional concern and that whether as a matter of remedy or as a matter of administration you cannot deal with union security matters. You cannot deal with these matters and not impinge and If I am wrong in my argument sir I think that perhaps it would raise great question as to the correctness of Curry and Farnsworth and I believe those decisions to be eminently correct because they proceed on the analysis that to attempt to obtain a closed shop constitutes an unfair labor practice. Contrary to my opponent I believe that the Curry case is pretty clear. This Court adopted the findings of the Georgia Supreme Court to the affect of the purpose of the union was to obtain a closed shop. There was any organization problem involved there. It wasn't any question of unionization as such. It was a naked effort to obtain a closed shop --
Potter Stewart: If there was a closed shop then it is clear that it is unfair labor practice that is a violation of the Federal Act.
S. G. Lippman: Yes.
Potter Stewart: So that relates to --
S. G. Lippman: But the Court itself does not -- but the Court itself did not focus on a closed shop but set forth the entirely these sections and recognized that this thing is arguably an unfair practice under any of the provision of Section 8 (a) (b), no state (Inaudible). It seems to me that the results of Curry and Farnsworth really control the disposition of this case as I think it was acknowledged by the solicitor in its footnote because he said that if Curry and Farnsworth were correctly decided then it was clear that a closed shop was unfair labor practice and the states would have not any authority.
Potter Stewart: On what footnote? Do you have, don't bother.
S. G. Lippman: I believe it is found sir on page 37 and 38 referring to the --
Potter Stewart: (Inaudible)
S. G. Lippman: Yes sir that's the one. For all the reasons stated I believe this Court should enter a degree making the findings that while a state has a power to declare the substantive law pursuant to a grant of Congress the matter must be administered and remedies granted pursuant to the provision of the National Labor Relations Act.