Earl Warren: Number 280, P.S. Guss, Doing Business as Photo Sounds Products Manufacturing Company, Appellant, versus Utah Labor Relations Board. Mr. Billings.
Peter W. Billings: Mr. Chief Justice, may it please the Court. I believe that perhaps this, the third of these three cases, brings in clearest focus the issue which has tied the three together. That is the question of whether 10 (a) provides the exclusive manner in which States may attempt to regulate unfair labor practices as defined in the Act when they affect interstate commerce. In this case, the appellant is engaged in the manufacture of special photographic equipment for the Air Force. I -- I think he most ably fits this definition of a borderline industry so far as interstate commerce is concerned as used in the statutory history of Section 10 (a). The total amount of these three contracts was around $150,000. He purchased about $50,000 worth of materials from outside of the State and delivered the finished special equipment to the Air Force to bases both inside the State of Utah and in other Air Force bases throughout the United States. He had his employee according to the ballot conducted by the NLRB, 26 employees. Soon after he started performance of these, the three contracts, the Steelworkers Union filed a petition with the National Labor Relations Board for certification of the steelworkers as the bargaining representative for his employees. And the day that the hearing was set on such petition, the union and Mr. Guss entered into an agreement for a consent election to be conducted by the NLRB. That was -- and that election was conducted in May of 1954 and the Steelworkers Union prevailed by a vote of 15 to -- 25 to 11 and the union was duly certified by the National Board. Very shortly after, within a week after that certification was issued, the union filed with the National Board a complaint alleging unfair labor practices, both in the conduct of the election in the alleging discriminatory discharges of some of these employees and a refusal to bargain. And thereupon, the National Board conducted an investigation of these charges between that day and July of 1954. In other words, just over a couple of months. On July 1st and July 15th of 1954, the Board came down with its new jurisdictional yardsticks under terms of which the appellant here clearly fall without.
Felix Frankfurter: What was the date, please?
Peter W. Billings: July 1st and 15th, Your Honor, 1954 as when they were announced in the press releases.
Felix Frankfurter: Is that remanding stationary to date?
Peter W. Billings: Yes, Your Honor, they have not been changed except as in case -- by case determination. They may have been expended.
Felix Frankfurter: They are general -- they are general persons.
Peter W. Billings: That's right. And so on July 21st, 1954, the regional director of the National Board advised the union that he would not process their -- further their complaint on the ground that it would not effectuate the policies of the Act for the National Board to do so. The -- thereupon, without any appeal to the National Board as the letter of declination invited, the union filed almost exactly the same charge with the Utah Labor Relations Board. And within a few months, the -- the Utah Board held a hearing and made the determinations from which this appeal was taken. The Utah Board is set up under the Utah Act which is -- which might be characterized as a little Wagner Act. It was passed in 1937 shortly after the Wagner Act was passed by the National Congress and was patterned on it. Instead of talking about interstate commerce or affecting interstate commerce as the National Act did, it uses the words intrastate commerce and the orderly operation of industry and is ministered by a Board similar to the National Board. However, in 1947, it was again amended to add certain unfair labor practices of employer -- of employees as well as employers, but it was not amended to conform to the Taft-Hartley Act which was passed in the same year and it has not been since amended, so that everyone here concerned in this case concedes that the Utah statute does not meet the requirements of Section 10 (a), that it -- it does not have consistent corresponding provisions to the National Act. Some of the particular differences which might be pointed out are that the Utah Act has no provision for the filing of non-Communist affidavits by union officers and by the filing of financial reports by unions. It does not provide for the 60-day cooling-off period for the respective strikes and it has different standards for the determination of a bargaining unit in the first place, so there are real and substantial differences in the Act. We raised the issue of the power of the State Board to issue any order in this action at the commencement of the hearing and throughout that hearing and appeal under the state statutory procedure to the Utah Supreme Court raising the same issues. And that was the only issue passed upon by the Utah Supreme Court. The Utah court affirmed the decision of the State Board that it had jurisdiction on the basis that there was intrastate as well as interstate commerce involved. Relying on the decision of the California court in the Garmon case which came out only a few weeks before this case was decided and arguing that unless it did so, this so-called “no man's land” would prevail. Now, I think that this case I have here has these distinctions from the two which we have heard before. One, and I think perhaps the most important that here, there is a state board and a state statute involved rather than a state court. Secondly, the National Board actually asserted jurisdiction in the proceedings and then within -- within two months after that, declined to exercise jurisdiction over unclaimed unfair labor practices arriving -- rising out -- out of the very election which the National Board had conducted. And thirdly, different from the other two, is an employer here who is raising the issue, point being that the sword of exclusiveness of 10 (a) cuts both ways. We join with counsel for the unions in the two preceding cases in our position that based on the express language of 10 (a) based on its legislative history, it provides the only, the exclusive manner in which the States may act in matters affecting interstate commerce where there are parallel provisions between state and federal law, and this is certainly one of those. We have the same pattern in our statute as is in the national statute for the certification of a union for election to be conducted by a Board and for a Board to hear charges of unfair labor practices of both employees and employers. But aside from that same general framework as I have pointed out, there are -- are real and substantial differences. And of course, one of the most important from the standpoint of an employer and his employees who may be members of the union which is seeking to organize his employees is a question of -- of Sections 9 (f) and (g) of the National Act which require the union before it can avail itself of the National Board to file the non-Communist affidavit of its officers and the provisions which require the union officers to file financial statements. Those protections are not given in the Utah Act. So that if the Utah Act is applied, certainly, this employer and his employees are deprived of rights given to them under the National Act. Therefore, if the Board can do as it attempted to do in this case and merely by declining to act, place jurisdiction in the State Board, it can do that which Congress said it couldn't do and that is make an employer who's been as affects interstate commerce subject to statutes which are different from the national.
Hugo L. Black: Can it do that employer by employer or does it claim the right to do it by a general rule?
Peter W. Billings: As I read Section 10 (a), Your Honor, it says in any cases and then it sets down at the -- in those cases, the state statute must have corresponding provisions not inconsistent with the federal statute, and I would think it would have to do it by general categories and not on a case-by-case basis.
Hugo L. Black: Well, then in this case, did they do it on a basis of renounced jurisdiction on the basis of this particular case and what it involved or did they do it on the basis of a general rule such as a general law would be?
Peter W. Billings: I would say that we did it on the basis of their jurisdictional yardsticks which are general rule. They were published, as I said, a week or 10 days before the letter of the Board declining to act. The letter of the Board does not expressly incorporate the yardsticks but I was informed by counsel for the Board that that was what they meant when they said in their letter, “Will not effectuate the purposes of the Act.” That was the language they used.
Hugo L. Black: As to whom -- as to whom -- presume that might possibly make a difference.
Peter W. Billings: I presume it might well, if --
Hugo L. Black: If -- if not, the Board could -- if it saw fit, subject employers at exactly the same type, to one law and other employers of that type to a different law without the fact, putting them within in the Jones category.
Peter W. Billings: I would say they could only do that if they -- if the state law were -- met the requirements of Section 10 (a) of the National Act.
Hugo L. Black: Yes, I -- I understand that's your position.
Peter W. Billings: Yes. Yes, that's right.
Felix Frankfurter: But they do that everyday when they entertain a complaint or when they don't entertain a complaint. It makes a decision as to -- it might be ahead, practical difference to the fact. I mean in situation which this problem doesn't arise at all.
Peter W. Billings: Yes, that's perfectly true. Otherwise --
Felix Frankfurter: And the whole point of having an intervening administrative agency doing to accept this.
Hugo L. Black: I was --
Peter W. Billings: Exactly, Your Honor I --
Hugo L. Black: I -- I wasn't asking you about that.
Peter W. Billings: Yes.
Hugo L. Black: I don't claim.
Peter W. Billings: My point is --
Hugo L. Black: What I -- what I was asking was whether -- not whether they would hear one employer and -- and not hear another, but whether they could by declining to hear one employer and not hearing another and sending it to a state court, whether they could do that knowing that the law would be entirely different to be applied to one employer would be applied to another. If you assume that the state law doesn't have to be consistent to the federal law.
Peter W. Billings: Well, I would say, Your Honor, that they could not take such action unless the state law were consistent. And -- in my -- I make that point --
Felix Frankfurter: You mean under -- you mean if they avail themselves of the -- a party to see -- formally to see to a state, the state jurisdiction, is that what you're talking about?
Peter W. Billings: That and I say that is the only way they may do it.
Felix Frankfurter: Well, I understand that.
Peter W. Billings: So that if they did at any other way, they are in effect --
Felix Frankfurter: I understand that. If you're right about that --
Peter W. Billings: Yes.
Felix Frankfurter: -- then the other problems doesn't arise.
Peter W. Billings: Yes. And I -- and I'm really seeking to emphasize that point by pointing out the situation in this case where under the doctrine of the Arkansas Oak Flooring case decided this last term by this Court, the National Act applies to this situation even though the Board may not act for reasons of its own or for reasons set forth in the Act. Still, the National Act applies. And I understand that's the issue which the National Board raised in its brief which Mr. Justice Harlan inquired about. I think --
Felix Frankfurter: (Voice Overlap) and to raise this kind of --
Peter W. Billings: I think it raised the very -- clearly, Your Honor, in the how can the Utah Board --
Felix Frankfurter: You mean argumentatively raise this?
Peter W. Billings: Well, yes.It was not raised down there, surely. But I think the -- the issue is -- is there because how can a state board which is a creature of state statute and which is authorized only to enforce state law, how can it here apply national law? It has no authority.
Felix Frankfurter: (Voice Overlap) -- that was a problem of the defendants, not quite in that form but that would be essentially, this difficulty that the defendants had in the San Diego case.
Peter W. Billings: Yes, Your Honor. And I think that's what makes my case all the stronger than the San Diego case. I can see a state court enforcing a law -- a federal law. It does it all the time. Now, a -- a labor law maybe a little more peculiar as Mr. Justice Frankfurter pointed out in the -- in the -- a state court's ability to -- to formulate. But certainly, a state court can do that but I don't -- my point is that a state board, a creature of state statute with jurisdiction limited to that statute can't enforce a -- a National Act and the National Act is the one that clearly applies here.
Felix Frankfurter: I wouldn't believe that's -- or just about that because I think conceivable that a state may -- a state may have an administrative agency, the purpose of accepting the cases that should be allowed to be brought in the state court under the FELA, and I see no difficulty of that. There may be (Inaudible) whereby the state agency might determine whether or not this comes within the Federal Employee Liability Act.
Peter W. Billings: Well, I think -- I'm not saying constitutionally, that could not be done. I'm saying though that a state board which has its power limited in this -- as it is here to enforcing a state act couldn't very well do that unless the state legislature said it could. That's my point, Your Honor. And I think that the -- the only other thing I think that need be said in this case is the -- with respect to this so-called “no man's land” that seems to worry everyone is that that is within what Congress felt its policy, what it was to be. That is that the National Act was to apply, the national policy was to apply. If the states wanted to enforce it, that policy in situations where the National Board for some reasons of budgetary faults, they did not choose to act. The states could do so if they subscribe to the National Act by enforcing -- by enacting statutes like the National Act.
Felix Frankfurter: What you're saying is, we've rendered about a half a dozen cases which we create its no man's land. Now, I know Bethlehem, all of --
Peter W. Billings: Yes.
Felix Frankfurter: -- in which we said, "Never mind whether the Labor Board did anything or we'll do anything, you're out."
Peter W. Billings: Yes.
Felix Frankfurter: And we know very well in both of those cases nothing happened.
Peter W. Billings: But --
Felix Frankfurter: And -- we'll, you don't have to have a law of covering everything, do you?
Peter W. Billings: Exactly. And that if -- if the legislature wants to -- to meet 10 (a), it may do so. But Utah has had 10 years now since the Taft-Hartley Act was in effect and Utah hasn't done anything about it. I -- it'll -- sees that the Utah Board can come in now and -- and say it ought to have that power. And I suppose --
Earl Warren: Attorney General Callister.
E. R. Callister: Chief Justice, Honorable Court. I agree with my opponent -- opposing counsel here that this case is a little different in the two previously presented. Here in this case, we have a specific refusal by the -- the National Board to proceed. We have an action by a state board which is fully consistent with the Federal Act. And thirdly, we have a comprehensive labor relations statute in Utah which almost does not exactly correspond with the National Act. It does provide at least a guarantee of the basic rights provided in Section 7 and 8 and certainly, was consistent with the National Act in the instant case. In that regard, I'd like to read if I may from the decision of the Utah Supreme Court. It stated, “In the present case, there are no allegations that either party was deprived of rights which it might have obtained under the federal law had the NLRB heard the charges presented to it. There are in fact, no intimations that the National Board would have disposed of the matter in a way other than which the State Board did. No subsidy conflicts between the provisions of the Taft-Hartley Act concerning unfair labor practices and the Utah Code have been alleged nor do any appear with reference to the particular charges involved here. Since we discovered no conflict with federal authority in this case and since the values of immediate legal supervision of labor and controversies within this company can only be maintained through state action. We hold that the Utah State Labor Relations Board had jurisdiction in this matter and affirmed its decision in order.” Now, it seems from listening to the arguments that have gone on today relating to this question that there's a particular concern about Section 10 (a) of the federal act as to whether or not that prevents the National Board from declining jurisdiction in particular cases. I think we have to start out with the proposition that there's a presumption in favor of state jurisdiction in the absence of something expressly to the contrary in the federal act or in the federal decisions. Assuming that presumption, then I think we can turn to cases such as the Welch versus New Hampshire, Northwest Telephone versus Nebraska, Missouri Railway versus Larabee. In those cases, there you had a federal law, another federal administrative body, empowered and directed in some cases to institute rules of procedure and so forth. However, in these cases, the federal administrative body did not take affirmative action in -- at the time these cases arose in designating the various rights or rules and so forth. And it was held in all of those cases that where the Federal Government has created administrative bodies which could take care of these matters by regulation or otherwise but have not, then the State's jurisdiction applied. As you recall in the Welch case, that involved the Interstate Commerce Commission which was authorized to promulgate rules relating to the length of hours which a truck driver might drive. New Hampshire had a state law but I think allowing him to drive for 12 hours, and the ICC came along with the regulation for eight hours. But before that went into effect, the Court held that the state laws applied. Now, it concerns me about this “no man's land” as they termed it because of the economic impact, I think that a decision as advocated by my opponent would follow. As pointed out in the amicus curiae brief of the State of New York, over 90% of the businesses in the United States have less than 20 employees. As a consequence, it would be an almost impossible task, I believe, for the National Board with its limited resources and personnel to handle each and every case that might arise in this field. The proper place for it, I think, is with the State. And certainly, the mere fact that the state law might differ from the National Act is no argument against to permitting them to act when the Federal Government declines to act because I think some regulation is better than none at all. If our adversaries are correct, you're going to have a law of the jungle when it -- it applies to these “no man land” cases. The Federal Government won't act and the State can't act.
Hugo L. Black: Why not? Why can't you act in connection with the session?
E. R. Callister: Well, there, Justice Black, it's admitted that there has not been one agreement entered into under Section 10 (a) because of its qualifying provisions.
Hugo L. Black: What qualifying provisions?
E. R. Callister: The provisions to the effect that the state laws and the interpretations thereof must be consistent with the federal.
Hugo L. Black: Well, I -- I understand that you -- I understand that you told us, the law is consistent and that -- what would be -- what would there be to prevent a session there?
E. R. Callister: Utah's law, as I pointed out Justice Black, is consistent -- somewhat consistent in -- in relation to this particular case before. It's the Unfair Labor Practices Act. In other aspects, the Utah Act does not conform to the National Act. Utah's Act didn't conform in almost identical words and so forth with the Wagner Act.
Hugo L. Black: In this case, the -- the Act is -- Utah has acted, as I understand it, altogether consistently with the --
E. R. Callister: That is correct.
Hugo L. Black: So that here, it's quite different to the other cases I would suppose. You have no question of inconsistency as to this. And the sole question is, get down finally to the point as to whether the exclusive method of exercising state jurisdiction is by session.
E. R. Callister: That's correct, Your Honor. And I am trying to admit that that in my opinion is the nub of this -- this controversy. If I could say this case is distinguishable and that there is no possibility in this case, particular case of a conflict with the federal law, still, it's the position of the adversary, my adversary, that even though it's consistent in as much as there was no session agreement entered into --
Hugo L. Black: That's the dispute here.
E. R. Callister: That's right, Your Honor.
Felix Frankfurter: Mr. Attorney General, may I ask if your -- your consideration to this problem if they decide qualification to what you've said, I wish -- my regret, the Government isn't here as argue what they have said in the brief. And they say it should be noted here that the Board has been unable, unable, unable because of the prescribed condition to consummate any such agreements. I -- I -- that's a little (Inaudible) I must understand because the provision is not as you indicated that the state law must be consistent where that the State must have -- in other words, Section 10 (a), the -- with an implication of an incitement to get the States to pass little Wagner Act. The -- the condition for Taft-Hartley Act, the condition is not as such, they must have the same kind of a statute but there must be nothing inconsistent with them which will be considerable difference --
E. R. Callister: Well, that -- that --
Felix Frankfurter: (Voice Overlap) -- or maybe lacking in certain provisions of the Taft-Hartley Act of its comparisons. And if that wouldn't constitute as inconsistent provision, isn't that so?
E. R. Callister: Yes, that's right, Your Honor. I stand to be corrected.
Felix Frankfurter: I don't understand. I wish the Court as in a more illuminating on this problem.
E. R. Callister: No, your --
William J. Brennan, Jr.: Now, Mr. Attorney General --
E. R. Callister: Yes, sir.
William J. Brennan, Jr.: Perhaps, I correctly -- did not understand you correctly. Do you suggest to Mr. Justice Black that if in fact there is consistency between Utah and federal laws, a declination by the Federal Board to act might be viewed as tantamount to a session for the purposes of 10 (a)?
E. R. Callister: No, no, you misunderstood me.
William J. Brennan, Jr.: Now, that has to be a formal session, does it not? It provides expressively.
E. R. Callister: I say that's the position of my opponent that even though the Utah lack -- law is consistent, it cannot act or take jurisdiction without the formal agreement --
Felix Frankfurter: Well, there's then in other (Voice Overlap) --
E. R. Callister: -- between the session.
Felix Frankfurter: I mean there isn't any doubt about it. Is there any disagreement that there must be that this 10 (a) calls a law of formal arrangement between the Board and the state authority? Is there any doubt about that? I'm not reaching the question that's before us empowered by agreement.
E. R. Callister: That's right.
Felix Frankfurter: I should think that must be formalized in some way --
E. R. Callister: I would assume so, Your Honor.
Felix Frankfurter: -- because that's what we have in Bethlehem. That's (Voice Overlap) --
E. R. Callister: Right. But it's our contention that 10 (a) does not apply to these cases where you have a declination by the Board of jurisdiction. As I pointed out in the Welch case, there you had a Board empowered to act but it hadn't acted as yet, so the Court let the State take jurisdiction enforce its laws. And it seems to me here where you have a Board who -- which is empowered to act and it declines to act, I think that's a much stronger case than when it -- it just hasn't gotten around to acting as yet.
Felix Frankfurter: They haven't gotten around to where they must but aren't there seven cases? The Welch is one, in which this -- which Congress passed to the statute, but then requires the -- it used the current phrase -- implementing of that statute by rules and regulations. There are several such cases in this Court, aren't they?
E. R. Callister: Yes, Your Honor.
Felix Frankfurter: Now, this Court has held the mere potential authorization of issue enforcing rules, doesn't in this larger case however.
E. R. Callister: That's correct. In the --
Felix Frankfurter: That's your position here.
E. R. Callister: I think this position is even stronger because here, the Board has declined absolutely. It's not a case of where it hadn't gotten around to acting. It just says we are not going to act in this certain area.
Felix Frankfurter: Can you always tell what the area is?
E. R. Callister: Under the Board's --
Felix Frankfurter: Yes.
E. R. Callister: -- jurisdictional yardsticks? I think so with as much certainty as you can get. I mean it's -- they -- they come along and makes --
Felix Frankfurter: What do they give you?
E. R. Callister: [Laughs] Well, they come along and they say, the certain amount of inflow or outflow in dollars and cents worth of business either put you under the Federal act or leaves you out of it. Now of course, in my opinion, that's a better guide post than these phrases like affecting interstate commerce or an indirect effect and so forth.
Felix Frankfurter: But dollars -- but dollar -- dollar isn't the only guide?
E. R. Callister: No, but it's a convenient yardstick.
Felix Frankfurter: Well, it would be if it were the only one but they -- there are other substantive yardsticks.
E. R. Callister: Well, they --
Felix Frankfurter: Kind of a business you are, leave that controversy here as to whether you come within the union as employer for instance?
E. R. Callister: That's correct, Your Honor. But at least they are spelled out with some particularity in their rules and regulations.
Hugo L. Black: Stated another way, your position, isn't it, that Congress authorized States to exercise jurisdiction in these labor cases affecting commerce if a formal session was made?Congress did that. But that -- in addition to that, you want us to construe the act as meaning that the Board by declining to exercise jurisdiction in other and different cases can give the states jurisdiction.
E. R. Callister: That is correct, Your Honor. And getting --
Felix Frankfurter: And you rest -- and you rest that, I take it, or so you take that view. You rest that in part on the authority of -- on the provision of the statute, I forgot what section it is, that the Board can make rules or regulations to effectuate the purposes. And one of the purposes of the Act is to be able efficiently to carry it out. And the Board has ruled that then they carry it out efficiently to answer to all discrepancies.
E. R. Callister: Well, I also -- pardon me, Your Honor. I also based it upon this too.
Hugo L. Black: Have you made those arguments? They are pretty good. [Laughter] It's not -- be good enough but they're pretty good.
E. R. Callister: But further than that, I think by reading the language of Section 10 (a), you can also reach the conclusion that Congress didn't intend to prohibit the National Board from declining jurisdiction in such cases. The word “empowered” is used throughout that section. The Board is empowered to prevent unfair labor practices. It is empowered to enter into the session agreements. The word “direct” is not used. Now another thing, at the time -- well, since the inception of our Labor Relations Act in 1935 and subsequent, the Board has consistently declined to exercise jurisdiction in -- in certain cases, the small cases in which they felt that no substantial interest as far as commerce was concerned was affected. They've done that continuously and it's true that at the outset, they did it on a case-to-case basis. Now, this Court, in the Bethlehem case, certainly was aware that there was this particular type of the case where the Board had declined to exercise jurisdiction for budgetary or other reasons.
Hugo L. Black: I presume Congress was aware of it because they were so aware of the Bethlehem case.
E. R. Callister: That's correct.
Hugo L. Black: They amended it to grant -- state jurisdiction that there was assessment.
E. R. Callister: That's what I'm getting to, Your Honor. So it --
Hugo L. Black: But they didn't do the other?
E. R. Callister: Well, I don't think they had to. Here is the situation. You have -- you had two distinct matters under consideration there in the Bethlehem case in my opinion. You have the case that was before you at that time regarding the -- the certifying of the foremen's union. And there it was held that the Board's declination of jurisdiction in that particular field was because its declination was in the nature of a decision and then you reserved the question of declination for budgetary reasons. Now, Congress had that decision before it when it enacted 10 (a). Now, I think if you read that act, it says, “Provided that the Board is empowered by agreement with any agency of any State or territory to cede such agency jurisdiction over any cases in any industry.” Now, they are speaking more than just to these cases that were declined because of budgetary reasons. Under the language of this proviso, the Board concedes its jurisdiction to a state agency on any case regardless of the effect that the particular case might have on interstate commerce. There's no restriction here except for these limited few such as mining, manufacturing and so forth where they say there that they can only cede jurisdiction when it's predominantly of a local character. Now, in my opinion, that exception that is put in here relating to mining and manufacturing and transportation and so forth indicates, at least to me, that the intent of Congress was not to be regulating or doing away with the powers of the States to act where the Board had declined jurisdiction but on the contrary. It seems to me it's a recognition of them. Here, they're granting to the States, providing the States, don't have inconsistent laws and so forth. They're providing here that they concede their jurisdiction in any case. Now, I also believe that -- that this 10 (a) provision has given the interpretation advocated by -- by --
Earl Warren: Do you consider, General, that the -- the report of the committee that was quoted by counsel is consistent with that?
E. R. Callister: Yes, I do, Your Honor.
Earl Warren: In what way? Would you --
E. R. Callister: Well --
Earl Warren: -- would you mind elaborating?
E. R. Callister: Yes. I'll have to confess that as far as the legislative history of this particular provision is concerned, it's very unsatisfactory I think from both sides. But under that quoted committee report, it was referred to in the case previously. It spoke of borderline cases that this was designed to take care of borderline cases. I don't -- can't tell from the legislative history or from that excerpt that borderline cases met the small cases that -- cases that were declined because of budgetary reasons. A borderline case is a case not -- not like you had in the Bethlehem case. A borderline case doesn't mean its borderline because the amount is particularly smaller, it falls below the standards or because the Board has declined jurisdiction for budgetary reasons.
Earl Warren: But when they once fix the limits, they're not borderline anymore, are they?
E. R. Callister: That's right, Your Honor. And at the time, I'd say the Section 10 (a) was written into it, the Board had consistently up to that time declined jurisdiction for budgetary reasons. At that time, it was on a case-to-case basis however. Another point I would like to make is that --
Hugo L. Black: Do you know whether the Board asked the Congress to change this or not or just going to the Court?
E. R. Callister: I don't know that, Your Honor, whether they've asked for a change in this or not.
Felix Frankfurter: Well, we've been told that in 1954, it's practically in the case.
E. R. Callister: Well, there have been several amendments proposed. I'm aware of that, Your Honor. But as to whether or not the Board has requested a change, I'm afraid I just don't know if that isn't --
Felix Frankfurter: It just seems frequent to be more a popular, so that is amplified due to fighting this to the Congress.
E. R. Callister: [Laughs] I'll agree with you there. Now, 10 (a), as I was going to state, had given the interpretation advocated by the adversary. It would rule out, in my judgment, state court action. And I just can't conceive that Congress would intend to rule out state court action. In it -- just as much as I cannot conceive that Congress intended that their biggest area where no law would apply at all, state or federal.
Felix Frankfurter: This certainly is that Congress is awfully discreet about telling us what it intends to do. They're awfully -- renders in party of our country.
E. R. Callister: Well, I agree. In the particularly -- and that's particularly true here because --
William J. Brennan, Jr.: Is it?
E. R. Callister: -- this proviso -- this proviso was adopted. That is without any extended hearings. I mean it was -- resulted here in Bethlehem case and that was -- I think it was --
Felix Frankfurter: Can you tell us what they thought about the Bethlehem case? I don't mean whether they thought including that. They're a very busy party, in some other things, this is one.
William J. Brennan, Jr.: Correct.
William J. Brennan, Jr.: Mr. Attorney General, does it strange that Congress should have made the consistency of the criteria and of the session and yet, also, contemplated that whether or not there was consistency, the Board might form out by declinations of large area of its responsibility?
E. R. Callister: No, Your Honor. I don't think so. As I tried to point out in 10 (a), the Board is given the right to cede jurisdiction in any case in any industry with the exception that that one little word --
William J. Brennan, Jr.: Well, now --
E. R. Callister: -- I'm sorry.
William J. Brennan, Jr.: -- let me see. Am I -- am I in error in my impression that there may not be any formal agreement except for a consistency between the State, the federal statutes are -- is established?
E. R. Callister: That's right, Your Honor. Well, now --
William J. Brennan, Jr.: That's a very --
E. R. Callister: -- but they have set up these yardsticks and have declined jurisdiction in these cases which fall outside the limits. In other words, the case in which --
William J. Brennan, Jr.: Do you really know why does they decline jurisdiction in any of these cases?
E. R. Callister: I think I do, Your Honor. It's because of budgetary reasons and lack of personnel that the National Labor Relations Board have to process everyone of these, I think it would be --
William J. Brennan, Jr.: So then however inconsistent --
E. R. Callister: That's right.
William J. Brennan, Jr.: It left the statement, remedies. The state law maybe with the federal trustee --
E. R. Callister: That's correct. But --
William J. Brennan, Jr.: Now, that case is formed out.
E. R. Callister: Yes.
William J. Brennan, Jr.: I have trouble getting over that.
E. R. Callister: Well, I don't blame you. But here like I say, if the Board entered into a formal session agreement, well it's like to say it can, covering any case in any industry, it would be a case it seems to me where consistency would be required because the industry in that case would be affecting interstate commerce to a substantial degree. Now here, they have determined that the industries that fall outside of this limit set by the yardstick, they have determined that that type of industry does not affect commerce -- commerce to any substantial degree.
William J. Brennan, Jr.: Well, my difficulty with that is, if I understand it correctly, it is not unusual for at least the local regional officers to refuse to take a case, let's say, in the construction industry only because the particular employer or the particular controversy doesn't appeal relevant to other matters pending before that office, he -- like the kind of controversy that that office wants to give its time to investigate. And that apparently is without regard for whether or not a particular industry involved like the construction industry, may be one where it would be wise for the Board to resolve all controversies.
E. R. Callister: Like the --
William J. Brennan, Jr.: Am I wrong about that?
E. R. Callister: No, no. I don't think you're wrong about that, but I do think this. What we have here, if -- if the State Boards or the state courts can't act -- first of all, you have to determine whether or not the Board can decline jurisdiction.
William J. Brennan, Jr.: And I looked -- I -- I'm also -- the state court's being able.
E. R. Callister: Fine.
William J. Brennan, Jr.: But the difficulty is whether this statute allows us to say that.
E. R. Callister: Well, I think under -- I like to say, first of all, you have to determine whether or not the National Board can decline to exercises its jurisdiction. And that I think it can by the very wording of the statute and I think this Court, inferentially at least in the Denver Building Trades case, came to that conclusion. So, once establishing that the Board can decline jurisdiction for this budgetary reasons then if the state court or the State Boards can't act, then there's no law that would apply. And I can't believe that that's consistent with the national policy as set forth in the Act or stated by Congress.
William J. Brennan, Jr.: Well, because the alternative may have to be that the Board has to act and may be mandamus to act.
E. R. Callister: Well, there we come to another reason why I think that Congress didn't intend to apply to this -- Section 10 (a) to these situations because Congress certainly, we ask to be charged with the knowledge of what has been happening. And if they felt that this National Board had to act in every one of these cases, certainly, the appropriations for the National Board and the personnel would have been enlarged.
Hugo L. Black: If then, they always have it.
E. R. Callister: Well, I still think, however, it's an indication as I said --
Hugo L. Black: Sometimes, to the pressure against the appropriations which have something --
E. R. Callister: That's right.
Hugo L. Black: [Laughs] -- as you know.
Earl Warren: General, you -- either you or counsel stated 90% of the businesses of the country were less than -- had less than 25 employees --
E. R. Callister: 20 employees.
Earl Warren: -- or something of that kind. Do you have any figures to show what -- what percentage of the businesses of the country would be -- come under this yardstick that it would be eliminated from the jurisdiction?
E. R. Callister: I have not, Your Honor. But I would assume -- I mean, we're just trying -- this is in the New York's brief and it --
Earl Warren: Yes.
E. R. Callister: -- kind of opened my eyes when I read but --
Earl Warren: Yes.
E. R. Callister: -- I think you could correlate pretty closely, I mean, the number of employees as to the volume of business done. I mean there would be somewhat of an analogy between the two.
Hugo L. Black: Do you know whether the Board has asked for greater appropriations in order to try these cases?
E. R. Callister: That I do not. I know they haven't been given them.
Hugo L. Black: You don't know whether they've asked for it.
E. R. Callister: I imagine being a typical board that they'll probably ask for a lot more than we get.
Hugo L. Black: It would be a little surprising to get one.
E. R. Callister: [Laughs] Well, Thank you.
Earl Warren: Thank you, General. Mr. Billings, did you have --
Peter W. Billings: I -- I hope --
Earl Warren: -- anything further.
Peter W. Billings: In the time I have, Your Honor --
Earl Warren: Yes.
Peter W. Billings: -- I wanted to refer to two questions. One that Mr. Chief Justice asked with respect to the statutory history. And Mr. Callister said that he didn't think they were talking about when they said borderline industries, talking about borderline so far as interstate commerce is concerned. Now, I wanted to refer the Court to the report of both the Senate majority and minority on this provision because that is where this provision originated. It was in the Senate. The Senate majority report said the --
Felix Frankfurter: Could I trouble you of where you're reading from.
Peter W. Billings: From page 27 and 28 of my brief.
Felix Frankfurter: (Voice Overlap) --
Peter W. Billings: Yes, Your Honor. The -- right at the bottom of page 27. A proviso which has been added to this subsection permits the National Board to allow State Labor Relations Boards to take final jurisdiction of cases in borderline industries, for instances, borderline insofar as interstate commerce is concerned. Then in the minority report, and this is on page 28 of my brief, they say Section 10 (a) adds a proviso to the present Act empowering the Board to concede to any agency of any State or territory jurisdiction over any cases not predominantly national in character. So I think it's very clear from both the majority and the minority that this borderline area where this case falls is the type of case they are talking about when they passed 10 (a), that they wanted, perhaps, the States to act that they wanted the States to adopt a policy similar to that of the National Act. The other thing I want to --
Felix Frankfurter: Is there any -- may I trouble you, Mr. Billings?
Peter W. Billings: Yes.
Felix Frankfurter: Was there any particular reason where as the minority reports that was referred to the Allied case, (Inaudible)
Peter W. Billings: That's the same as the Bethlehem case.
Felix Frankfurter: Yes.
Peter W. Billings: I assume --
Felix Frankfurter: -- it's the same. It's another case decided --
Peter W. Billings: Yes.
Felix Frankfurter: -- any reason to that?
Peter W. Billings: Well, I assume, Your Honor, that they were --
Felix Frankfurter: (Inaudible) my mind at all.
Peter W. Billings: And I can't tell from reading the opinion of the Court in which it comes on the Bethlehem if there's any difference in the facts between this case --
Felix Frankfurter: (Inaudible) consider by the Board as you know this is together with deciding to it and I --
Peter W. Billings: Yes. And I don't know why they did it that way, but I assume they're referring to the problem raised in Your Honor's concurring opinion in that case. That's the only reason I can see.
Felix Frankfurter: And in that, is this the only explicit reference in the Bethlehem's decision?
Peter W. Billings: The only one I've been able to find in this committee reports, Your Honor, is -- is that reference --
Felix Frankfurter: That was terribly --
Peter W. Billings: -- in the minority report.
Felix Frankfurter: I terribly say they were irrelevant about it at all.
Peter W. Billings: Well that, I wanted to point that out. Now, the other -- I think it's very clear that Congress was -- said what they were talking about here. It's not like as in the other cases this Court has referred to where they said -- had said with respect to the Taft-Hartley Act that Congress has left much to the States but hasn't said how much. I think clearly here, Congress has said how much has it left to the States.
Hugo L. Black: I must have misunderstood you because on page 26 or 27 of your brief, you cite the House Report which said they were taking action to meet the situation made possible by the Bethlehem Steel Corporation case.
Peter W. Billings: I'm quoting there, Your Honor, from this Court's opinion in Algoma.
Hugo L. Black: You're -- you're quoting from the opinion, not from the (Voice Overlap) --
Peter W. Billings: Yes, Your Honor. And then -- and it says in the quote, “See the House Report.”
Hugo L. Black: Yes.
Peter W. Billings: Now, I'm not sure there whether the House Report expressly refers to Bethlehem or not, but this Court indicated I thought it did, I gather in the Algoma opinion. Now, the other question I want to refer to was the one that Mr. Justice Black mentioned might be a good argument. That is that this -- this was a rule and regulation and the only way to efficiently operate the Act was to cut down on -- so as to meet your budget. I want to point out the nature of these yardsticks, so called. No one really hear has discussed those. The brief -- amicus brief of the steelworkers, who where my appellants below and have joined me here, discussed that in some length and I want to point out that there, it is said that --
Hugo L. Black: So they joined you here?
Peter W. Billings: They -- they joined me in the position to my construction of 10 (a), Your Honor.
Hugo L. Black: Yes.
Felix Frankfurter: You persuaded them, is that it?
Hugo L. Black: I don't know whether what persuaded them [Laughs] but at least they joined. But they point out that these so-called yardsticks are not rules and regulations. They were never issued under the provisions of the Administrative Procedure Act or any other formalities required of formal administrative rules and regulations. They just said in a -- in a press release, "This is what we're going to do in the future and in effect, govern yourselves accordingly." And then in a case-by-case program, they have attempted to implement that press release. And his brief shows the (Voice Overlap) --
William O. Douglas: What are the -- what if the members of the Board (Inaudible) Murdock in the Breeding Transfer case --
E. R. Callister: Yes.
William O. Douglas: -- indicated a reason for this is not budgetary as you indicate in your brief that the feeling that these States should have greater authority in the -- in the briefs or rather from the Act.
E. R. Callister: I say, Your Honor, in my brief that for budgetary reasons that that's what the Board majority at least said in its press release. I gather from reading Mr. Murdock's opinion in the Breeding Transfer case that he felt that there are political aspects to this program that the Board wanted the States to take hold and they thought they could do it this way where Congress had prohibited them from doing it by expressed agreement. I get --
Felix Frankfurter: Under the meaning, from the point of view of policy the desirable thing to have predominantly local -- incident of local industrial difficulty decided by the locality --
William O. Douglas: The distribution between a federal state.
Peter W. Billings: I think that (Inaudible) anyone would quarrel with that. But I think the call of Congress has indicated its policy that those predominantly local affairs should be handled on the same idea of policy, the same act, the same relation between management and labor.
Felix Frankfurter: When you -- when you emphasize that this came out on a press release, we don't need to imply the informality of the communication, it's what troubles me.
Peter W. Billings: I --
Felix Frankfurter: (Voice Overlap) difference if they had formal regulation act for hearing appropriate parties, say, the National Manufacturer, the National Chamber of Commerce, the AFL-CIO and then from the -- would that make a difference to you?
Peter W. Billings: I think that it might give a little more substance to the argument that this is pursuant to their powers to make rules and regulations. All I'm saying the -- it certainly can't be that here.
Felix Frankfurter: You say nothing or have made some and I may have missed it. Have you said anything about that power? Did they address themselves as you -- that's probably a kind of color to use, to say they won't deal with these cases?Is there anything about that?
Peter W. Billings: In my brief, no, Your Honor, I have not.
Felix Frankfurter: (Voice Overlap) your position.
Peter W. Billings: I don't think --
Felix Frankfurter: The question of their power might as relevant to problems of this --
Peter W. Billings: Well, I think -- I don't think it need be in the -- in the decision of this case in the decision of what 10 (a) means. I think if -- in the decision -- a determination of what these yardsticks means, it could very well do so. And I've cited in my brief three circuit court cases in which that issue was raised and I think probably this Court will be faced with that issue in one of those three cases. I -- I cite them only to point out that these are not absolute, these yardsticks and that Courts of Appeal have said that a party does have the right to go into court and make the Board show that the application of this yardstick is a reasonable one in -- in a particular case. And then that case, as I say, will probably be here eventually but I don't think it's presented in the context to this case.
Felix Frankfurter: No, but that the whole question whether they have -- this Court once having said what it decided in (Inaudible) construing the statute to be what it -- bound it to be. Isn't there no question that the Board may say, you would take any case that has turn over (Inaudible) the next undecided case problems? Is there -- I'm just asking you.
Peter W. Billings: Well, the only thing that troubles me with it, Your Honor, is the word “empowered” in 10 (a) instead of “directed”. That would seem to leave some discretion to the Board as to when it will act. I don't think there's any discretion as to when the National Act applies.
Felix Frankfurter: Well, the Court is merely empowered or directed as by lawsuits in statutes to be brought?
Peter W. Billings: Well, I -- I've had some trouble with that myself, Your Honor. [Laughter]
Felix Frankfurter: It's the question of "shall have jurisdiction" I think in the old ICC case. It'll probably (Inaudible) They were mandamus, (Inaudible)
Peter W. Billings: Well, I -- as I say --
Felix Frankfurter: That's the very -- the antecedent question, whether that's the duty and charged with the responsibility and whether they can and what kind of a legal showing that they have made and said in discretion with us, that there are so many cases. I looked up their last report. They only had 14,000 (Inaudible)
Peter W. Billings: Well, I -- I think that if you -- you got to the application of these yardsticks to a particular case, you might very well raise the question of whether they could reasonably refuse to hear you just because they like these yardsticks as a method of drawing a line. I think I can go that far to talk about generalities. I don't think in the context of these cases I could anymore than to say the word “empowered” troubles me.
Felix Frankfurter: Contested in the recent decision in the Court of Appeals, wasn't it?
Peter W. Billings: Yes, Your Honor.
Felix Frankfurter: Do you happen to know how many -- whether in District Courts, there have been -- how many cases do you know have come up or they would be the Court of Appeals initiative. How many cases have arisen which it's not by way of mandamus but somebody says here, your yardstick doesn't apply to the new laws of -- applied it under them? Is the litigation -- is the litigation seemed to be flourishing if there was a (Inaudible) body of cases?
Peter W. Billings: I would guess there would be. I haven't seen any statistics of it, Your Honor.
Hugo L. Black: Mr. Billings, do you suppose that -- that on account of the fact that you and your adversaries have agreed, both party are taking the same side, some of these complicated questions could be escaped as being removed.
Felix Frankfurter: But you haven't agreed with the Utah Labor Relation.
Peter W. Billings: No, I have not agreed with the Utah Board.
Felix Frankfurter: (Voice Overlap) --
Hugo L. Black: I see. You just agreed with the steelworkers but they're yours -- but they were yours, but adversary for a second.
Peter W. Billings: Well, that's perfectly true, Your Honor, but I gather that -- and so far as the facts of this particular case is concerned, they haven't agreed that my client was any better fellow than he was six months ago.
Hugo L. Black: I see. [Laughs]