Warren E. Burger: We will hear arguments next in 72-1597, Beasley against Food Fair of North Carolina. Mr. Eubanks.
Larry L. Eubanks: Mr. Chief Justice, may it please the Court. This matter comes on to be heard here on the writ of certiorari from the State of North Carolina. Simply, it involves our right-to-work law in the relationship with that right-to-work law with the Federal Substantive and the Federal National Labor Relations Act. A factual situation is one where three individuals who were employed at some food stores in North Carolina were terminated right after a union election that was conducted by the National Labor Relations Board. Now, our right-to-work law provides simply that in North Carolina a person who has a right to live, has a right to work there but after the union won the election, these three individuals was fired. And it’s our position simply that there is a coexistence as possible between a right-to-work law in the State of North Carolina that protects supervisors and a federal law which protects employees. Now, the case is dealing with the right of people that belong to unions and whether or not there is a constitutional right for that approach, have been dealt with many times by this Court. First of all in the Morton case back in 1940 -- Tomas v. Collins in 1945, the Court stated that “Union membership is protected by the right of association under the First and Fourteenth Amendments.” Well what that meant as it had been interpreted later was as true so long as you know government interference. In other words, government interference came in if you have the right to association. And that gave rise to a lot of cases involving people excluded from coverage on the National Labor Relations Act. For example teachers, policeman, garbage workers and a lot of cases they have extended all up into the present day time. Well, it's our position simply that in North Carolina as in about 19 to 20 other states, we have a law that says one of the group of people and that is supervisors have a right to belong to a union. That does not say nor does our law say that a company or an employer is required to bargain within the union of any body because that’s been covered by the federal law. There is no credit. It simply provides that everybody in North Carolina has a right to belong to a union without fear of being fired. Now, if in fact this case is preempted or the state law is preempted by federal law and I would agree with the defendant and the respondent in this case that the state courts have no business dealing with. But it is really our position that this Court in 1967, in the Hanna case has already answered this question. We submit that the Hanna case in Section 14 (a) of the National Labor Relations Act really determines and answers the question whether or not a supervisor can join a union and damages for his discharge because of his union membership can be given in a state court. And that’s the question we have here. In the Hanna case, the Court dealt with Section 14 (a) and I would like for the Court if I might to point out all of the words of 14 (a) of the National Labor Relations Act and it reads this way and I quote “Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization.” But the second phrase of that same Section is what the Court exactly dealt within Hanna Mining company that such statement says, “But no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.” Now the point I’m making by reading this to the Court is this. First of all Congress says when it removes supervisors from the coverage of the National Labor Relations Act in 1947 by the Taft-Hartley Amendment, supervisors can still belong to union but no longer will employers be required to bargain collectively with unions made up wholly or partially a supervisor. Now, if that approach is maintained under the federal scheme presently, it is our position that there is no conflict with our right-to-work law and a protection of a supervisor and the federal scheme or the federal law is passed in Section 14 (a). And this is one, in 1964 in the Morton case, this Court dealt with federal preemption. The Court has dealt it many times and I am referring to case as generally cited in our brief.
Warren E. Burger: We’ll resume there at 1 o’clock counsel.[Noon Recess] Mr. Eubanks you may continue.
Larry L. Eubanks: Mr. Chief Justice, may it please the Court. Thank you very much. You recall just before the luncheon recess I quoted to you a quotation from the case called Tomas v. Collins which provides “Union membership is protected by the right of association under the First and Fourteenth Amendments.” That was the 1945 case and that was in that posture of the situation that Congress chose to amend the Wagner Act. It was then called the Taft-Hartley Amendment. Now, I think it’s reasonable for the Court and we submit to the Court if reasonable for us to assume that Congress when it included 14 (a) into the Act, it had some reason for all of the words it put in that provision. You recall what I read to you just before the recess also Section 14 (a). The only time, I confine the case in which the Court had the actual situation where 14 (a) was an issue is the case called Hanna Mining which occurred in 1965. In that case, the Court talks about the Garmon decision, a 1959 decision to this Court which I’m sure the Court deals with often in preemption setting out in effect that conduct which is protected or by Section 7 or prohibited by Section 8 that the National Labor Relations Act is certainly preempted from any state control. But in that case and then the Hanna case mentions that there may be some other areas in which it may be better that state regulation not apply. Now, I would like to point out that one quote from Hanna Mining which raised that “The grand rules for preemption in the labor law emerging from our Garmon decision that the case that is mentioned should first be briefed or summarized. In general a state may not regulate conduct arguably protected by Section 7 or prohibited by Section 8 of the National Labor Relations Act.” Well, that’s clear and it’s been clear now since the Garmon decision. In Hanna Mining, the Court goes on to point out “The legislative purpose may further dictate that certain activity, neither protected nor prohibited be deemed privilege against state regulation and continuing for the reasons that follow, we believe the Board’s decision that Hanna Engineers are supervisors removed from this case most of the opportunity for preemption.” Now it is right there if the Court please that the appellant plaintiff in this case rests its position. In the Hanna case, the Court dealt with a situation where some supervisory engineers were attempting to picket, to obtain a recognition from an employer. The employer really in that case just said, “Well, I don’t believe you represent a true majority.” It did not take really the position that was ended up to start with but in that situation the Hanna engineers were doing exactly what the last part of Section 14 (a) of the National Labor Relations Act says says “it cannot do.” In other words that it cannot, no employer said that this Act shall be compelled to treat supervisors as employees for the purpose of collective bargaining. And the Hanna Engineers were simply trying to get this employer to do exactly that. Well, in the Hanna case, the Court mentions that it’s not dealing in that case with the situation where a person could become a supervisor and be fired for being a union member. It says it’s not -- specifically not dealing with that situation and this Court did. Well, the situation we have before this Court right now is the one the Court in Hanna said it wasn't going to deal within that case. In 1967, a case called U.S. versus Morton before this Court pointed out that -- or Teamster Local versus Morton, this is in 377 U.S., in dealing with the question of preemption 1964, I’m sorry, it says to explain the preemption doctrine further “The answer to that question ultimately depends upon whether the application of state law in this kind of case would operate to frustrate the purpose of the federal legislation.” Now, we submit to the Court that in light of Hanna, the Hanna case and in light of the statement in the Morton case explaining what is and what isn’t preempted that the activity of these three individuals who signed membership cards to the Union and were fired as a result thereof is not the kind of activity if regulated by the states would frustrate the National Labor Policy. In the --
Potter Stewart: Did the state court have any -- did the state court identify any particular provision that the state law was in conflict with?
Larry L. Eubanks: No, Your Honor. In this -- in the North Carolina Supreme Court case, the Court simply ruled in that decision that this matter is preempted by Federal Law and that was the basis of their decision. The Court of Appeals it rose specifically in citing Hanna and other decisions that he had not been preempted and the Supreme Court would reverse but it relied primarily on Hanna Mining in reversing the court’s decision of the Court of Appeals. Now I submit to the Court that Hanna Mining simply says, “Here is a state court trying to enjoin conduct being engaged in by some supervisors” which the National Labor Relations Act says “cannot be done.” The employer is not required to countenance, this kind of conduct. And therefore when the state court attempted to enjoin it, this Court said that’s okay. You can enjoin that kind of conduct because it does not in that kind of application of state law frustrate the National Labor policy. Well, we are asking the Court in this instance simply to rule, if Congress meant anything when it put the first part of the sentence of 14 (a) in there “Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization” to treat the first half of that sentence the same way. Meaning in effect if people have a right to belong to a union as Congress has said, then how can the provision for damages in a state court which only comes into play if this people are not allowed to exercise that right frustrate a National Labor Policy?
Thurgood Marshall: But here you don’t have a right to work. You have a right to organize. Is that right?
Larry L. Eubanks: Yes sir. We have a -- does the supervisors have a right to organize?
Thurgood Marshall: The point involved in this case as to whether these supervisors had the right to organize.
Larry L. Eubanks: No sir, that is I submit --
Thurgood Marshall: Well, what are they fired for?
Larry L. Eubanks: For simply signing union card.
Thurgood Marshall: Is that organization?
Larry L. Eubanks: Yes sir. That’s all the complain alleged --
Thurgood Marshall: Is that what the Labor Act is set up to control organizing of labors?
Larry L. Eubanks: Your Honor, yes sir but I submit to the Court that organization includes much more than just joining a union. There are many situations in actual life where frequently people are members of a union where they don’t even --
Thurgood Marshall: All I am talking about is you keep saying that this is the right to work that North Carolina statute is interested in protecting the right to work.
Larry L. Eubanks: Yes, sir.
Thurgood Marshall: And the right to work is not involved I submit in this case. It’s the right to organize that is involved, am I right?
Larry L. Eubanks: I respectfully disagree with you Your Honor for this reason if I might explain. The reason I disagree with you is this, I think that 14 (a) the second phrase of 14 (a) covers organizing, yes sir. But I think it also permits the joining of a union by one individual or more individuals for that matter. So long as there is no effort on their part to go through the processes of the National Labor Relations Act calling for recognition or through some action like was done in the Hanna case.
Thurgood Marshall: But you did go to the Hanna law basis.
Larry L. Eubanks: Your Honor, we were specifically told by the NLRB --
Thurgood Marshall: But you did go?
Larry L. Eubanks: Yes sir we filed charges.
Thurgood Marshall: And you filed charges that they had interfered with the right to organize?
Larry L. Eubanks: No, sir. We filed charges alleging a violation of Section 8 (a) 1 and that these -- these charges -- they got caught in the old situation dealing with firing of supervisors to coerce the employees covered by the Act and they’re not participating in the union.
Thurgood Marshall: That’s right.
Larry L. Eubanks: That was our theory before the NLRB.
Thurgood Marshall: But they participate in the union and the NLRB said no.
Larry L. Eubanks: From discouraging the employees Your Honor as opposed to anybody else. Remember the Act covers only employees --
Thurgood Marshall: I thought the NLRB said that we don’t have a jurisdiction because supervisory employees are not under our jurisdiction.
Larry L. Eubanks: They said -- they clearly said that and that was a decision of the general counsel. Mr. Nash when he contacted me and Mr. Stockton for the Company. The wording of the letter was --
Thurgood Marshall: So now you go to the state court on the right to work?
Larry L. Eubanks: Yes sir. Now, the situation is one where -- it is simple for everybody who has filed briefs in this case except us seems to put a union activity or organizing and the signing of a union card or joining a union into the same board it isn’t. I submit to the Court it isn’t the same thing.
William H. Rehnquist: You have to establish don’t you Mr. Eubanks that the North Carolina Law is not a law relating to collective bargaining under 14 (a) and your contention since all it talks about his membership in the union, it doesn’t require an employer to do anything once a man is in the union. It is not a law related to collective bargaining.
Larry L. Eubanks: We submit if they were Your Honor it will be preempted and we agree with your position but we certainly say, if it were one relating to collective bargaining it would certainly be preempted because of 14 (a) in the second half for that sentence says, “You can’t require an employer to recognize that kind of situation and we agree with that and with all the cases relied on by North Carolina Supreme Court in holding against us or in reversing the Court of Appeals we agree with. We agree with Hanna Mining, we agree with -- and the cases which spell out the preemption doctrine and what is precluded from state jurisdiction and what is allowable. You recall in Hanna that this Court said in Hanna that that state court since its enjoining on conduct that 14 (a) says that supervisors can engage in therefore does not frustrate state law. I mean federal labor legislation of federal --
Potter Stewart: I take it in that result of the state court’s ruling is that under the federal law, under the federal labor statute the employer has a guaranteed right that can’t be interfered with by the state, a guaranteed right to fire a supervisor for union membership.
Larry L. Eubanks: That’s what the Court’s position was Your Honor but even the board --
Potter Stewart: That is not, isn’t -- that’s where the -- necessarily where the State Court ended up.
Larry L. Eubanks: Yes sir. It is.
Potter Stewart: And that although the Federal Act says nothing herein shall be taken to prevent membership nevertheless apparently has a guaranteed right to fire if you are a member.
Larry L. Eubanks: Well, Your Honor that’s what the State Court as I understood it said Your Honor and that’s why I so vehemently disagree with because even if you will come into the case called (Inaudible) which I believe -- and it involved one of these situations where a supervisor was fired because he was told to go out and engage in some unlawful conduct on part of his employer and he said, “I am not going to do it” and the employer said “Well, if you don’t do it I will fire you,” and he wouldn’t do it so he got fired and the case went up through the board and it was ended up to the situation that the board ruled and was supported by enforcement that that really coerced employees who were covered by the Act and by firing a supervisor who was being in an effort to coerce employees we feel that situation is covered by 8 (a) 1 of the Act and I agree fully. But in so -- if the employer sits and contends to this Court and us and through all the Courts that have gone before that, look, an employer should have an absolute right to fire a supervisor. And that’s what I want to address this remark to. Now, I remember in the North Carolina Supreme Court, one of the justices asked me and the question, “look, this means that anybody can be a union member. This even means that a manger could be a union member.” Well I submit to the Court, they can be and it doesn’t mean that disloyalty. Somebody is so calm and in our every day life that people who grew up to the ranks of a union, a local union somewhere in the south or wherever it might be and accumulate benefits through membership and he is promoting in the supervision. He keeps his membership. The ruling of this Court that people are fired simply because they are union member, not for participation in any conduct disloyal to an employer, but simply by being something. By belonging to something would in effect mean that the employer could go out and fire everybody that was a member of a union. That’s what it means. Now in a teacher situation, in a teacher situation where these teachers attempted to organize in the North Carolina area for example, this case came up as to whether or not they had the right to organize and under the First Amendment of course if the state said no or the county as this case might be, would be protected under First Amendment. But I point out to the Court respectfully that to be a union member is not what 14 (a) is to protect against and there is no way it could frustrate federal labor policy for an employee or person who has got a right to work and arise a part of his right to live, go take a job or signing union card and in the end not getting fired when the law -- when the federal labor law has already said it but Congress said that we could do it.
William H. Rehnquist: Well but your example of the ordinary employee is the easy case because there, the federal law protects that right and obviously it wouldn’t get this far with that kind of a situation. But then it makes your problem more difficult if the man is a supervisor and so you do have to address the supervisor on 14 (a) which doesn’t affect ordinary employees.
Larry L. Eubanks: That’s correct Your Honor. You got to -- one thing I point out to the Court, the Court had a case that I find interesting as it relates to this situation and it was this, this case called U.S. versus Robel. And I am sure the Court is familiar where it dealt with the question of a communist who had applied for a job with the Defense Department. And the Defense Department had a regulation or some policy or for some reason he was not hired on the ground that his interest where inimical to that of this country because he was an admitting communist. Well, there the Court pointed out and I’d like to quote that if I might to the Court. The Court said this that “The operative fact upon which the job disability depends is the exercise of an individual’s right of association which is protected by the provisions of the First Amendment.” Now I point that out for this reason, I submit to the Court that if Congress did not mean in its enactment of 14 (a) that people should be entitled even if they are a supervisor to continue to be able to join a union and it didn’t have that right. Surely Congress in the status of the law in 1947 would have been more explicit in the provisions of 14 (a). They don’t talk about membership only in 14 (a), they talk about membership and then they talk about collective bargaining. I submit when they talked about membership, it said in effect that if supervisors can join but I further submit if the supervisors do bond together and try enforcing their employer to recognize them, that’s against the law and 14 (a) doesn’t protect. But unless an employer -- a supervisor is disloyal to his employer and the employer learns of that disloyalty in more respect than to see him joining an organization, he is certainly entitled to some protection in the state court.
Speaker: Did the supervisor here join the collective bargaining agents here?
Larry L. Eubanks: Your Honor there was -- this situation came up right after the campaign started. There was no --
Speaker: Now let’s assume that the supervisor decides he wants to join the union who is a collective bargaining agent.
Larry L. Eubanks: Yes, sir.
Speaker: I take it that this 164 doesn’t relieve the employer from bargaining with the bargaining agent just because the bargaining agent has some its supervisor member.
Larry L. Eubanks: I respectfully disagree with that, I think it absolutely does.
Speaker: Alright.
Larry L. Eubanks: The employer --
Speaker: Is that settled.
Larry L. Eubanks: Yes, sir. I certainly agree with your position in that matter.
Speaker: So that if the employer -- so that if the supervisor joins the wrong union, and if he joins the bargaining agent, the employer is excused from bargaining without bargaining agent, is that what you said?
Larry L. Eubanks: He at that point in my judgment could take the position if you -- if your union contains supervisors working for me I am not going to bargain with it.
Speaker: I would think that if the other way, there might be a better argument for firing him.
Larry L. Eubanks: I think so too Your Honor, I would agree with that. I would fully agree with that position. Gentlemen I thank you very much, I appreciate the time.
Warren E. Burger: Thank you Mr. Eubanks. Mr. Stockton.
Ralph M. Stockton, Jr.: Mr. Chief Justice, may it please the Court. This case came through the entire court procedures of North Carolina from the Trial Court to the North Carolina Appellate Court to the Supreme Court of North Carolina and that’s on certiorari here. The Supreme Court of North Carolina in a rather exhaustive opinion reversed the Court of Appeals of North Carolina which had simply recited the Hanna Mining case and said that on the basis of Hanna, the state court was not preempted and reversed the Trial Court. The Supreme Court reversed the North Carolina Court of Appeals and held it reviewed the legislative intent carefully of the Taft-Hartley Amendments of 1947 and the statute 14 (a) and incidentally Mr. Eubanks says nothing about 14 (b) which requires an agreement and I assume -- we submit that has nothing to do with this case. There is no union security agreement in this case. The North Carolina Supreme Court referred to Section 14 (a) to the fact that in the 1947 Taft-Hartley Amendments, Congress specifically removed supervisors from the definition of employees and from the general jurisdiction of the NLRB --
Thurgood Marshall: I thought Hanna was seven and eight, are you sure it is fourteen? Hanna Manufacturing Company? Hanna Mining?
Ralph M. Stockton, Jr.: I didn’t understand your question Your Honor, it was a reference to the citation that Hanna Mining --
Thurgood Marshall: No, does it involve Section 7 and 8?
Ralph M. Stockton, Jr.: It involves Section 7 and 8 and the fact that in Hanna this Court said that this was a supervisory union, supervisor’s union in Hanna. The Court -- this Court said in that case, they are supervisors so they are outside seven and eight. We’ll also go further and we’ll look to see whether there is any other federal labor policy that would preempt the state court from acting. And we say -- this Court says in Hanna, the committee reports revealed that Congress propelling intention was to relieve employers from any compulsion under the Act and under state law to countenance of bargain with any union of supervisory employees so that this Court said on seven and eight, it’s out, the supervisors. And so far as the overriding federal labor policy, what the state court did in enjoining the supervisor’s union from that picketing was in accord with congressional intent under the National Labor Relations Act as indicated by the committee reports and therefore we -- this Court said we will not preempt. But that’s where our Court of Appeals got off the track on Hanna because the instant case --
Thurgood Marshall: Well getting back to the other question, why did the Supreme Court say preempted? What part of the National Labor Relations Act?
Ralph M. Stockton, Jr.: The Supreme Court of North Carolina, Your Honor?
Thurgood Marshall: Yes, sir.
Ralph M. Stockton, Jr.: They referred to Section 211 the definition of taking supervisors out of the definition of employees, Section 14 (a) as -- and the legislative history and the Federal Court cases -- Circuit Court cases.
Thurgood Marshall: Well, what in the Act in any federal act says that the state is prohibited from taking the action against the supervisor?
Ralph M. Stockton, Jr.: The Section 14 --
Thurgood Marshall: I’m wrong, of the state taking action against an employer that it be has of the supervisor.
Ralph M. Stockton, Jr.: What says that the state is --
Thurgood Marshall: State is prohibited from giving relief to a supervisor.
Ralph M. Stockton, Jr.: To a supervisor.
Thurgood Marshall: Yes, against an employer.
Ralph M. Stockton, Jr.: They referred to Section 14 (a).
Thurgood Marshall: Which says?
Ralph M. Stockton, Jr.: Which says nothing prohibits the supervisor. Nothing in this Act, the 1947 Amendment prohibits the supervisor from becoming or remaining a member of the labor organization but --
Thurgood Marshall: That’s all it said.
Ralph M. Stockton, Jr.: No sir, it says but no employer subject to this sub-chapter which we are shall be compelled to deem individuals defined herein as supervisors with these plaintiffs and these civil damage state suits as employees for the purpose of any law, either national or local relating to collective bargaining and this state court action is bound --
Thurgood Marshall: That’s related -- related to collective bargaining.
Ralph M. Stockton, Jr.: Yes, Your Honor but this is --
Thurgood Marshall: And this -- is there anything in this action in the state court that says anything about collective bargaining?
Ralph M. Stockton, Jr.: In the state statute itself?
Thurgood Marshall: No sir, I said in the action.
Ralph M. Stockton, Jr.: In the action of the state.
Thurgood Marshall: How about the supervisor?
Ralph M. Stockton, Jr.: There is nothing in the compliant that says we are relating this to collective bargaining. But as practical matter, it has to relate to collective bargaining because under -- or example if the legislative history of the 1947 Amendments are very clear, they’re in the brief have very --
Thurgood Marshall: Well, Mr. Stockton supposed this supervisor is no longer members of the union? Can they bring the action?
Ralph M. Stockton, Jr.: At this time?
Thurgood Marshall: Yes, sir.
Ralph M. Stockton, Jr.: They are no longer members of the union when they start the suit, is that your question, Your Honor? No, I would say not Your Honor because at the time they were supervisors for this defendant. They then joined the union, now the legislative history is clear if it please the Court on this matter. Senator Taft in speaking to these amendments said specifically speaking of supervisors and this is in the brief. They are subject to discharge for union activity and they are generally restored to the basis which they enjoyed before passage of the Wagner Act.
William H. Rehnquist: Of course union activity isn’t all that clear. Is it that it would extend to the mere joining of a union?
Ralph M. Stockton, Jr.: Well, if they joined a union in the process of a union election going on then we would say this is certainly union activity. There they’re joining sides with the union. They are supervisory. They are managers actually of these markets.
William H. Rehnquist: Well, do you say that the North Carolina Law here that prevents a man from being fired for either joining or not joining a union is a law relating to collective bargaining under 14 (a)?
Ralph M. Stockton, Jr.: Yes sir and I think it has to. And if --
William H. Rehnquist: Well, all they want there, all they said they were doing was joining the union. They weren’t making any demand as I understand that the employer bargained with it.
Ralph M. Stockton, Jr.: No sir, but when they joined the union, they are a necessity affecting the employer's collective bargaining rights. He is dealing with a union which has his supervisors in it who maybe either trying to override the rank and file membership in his favor or undermine him in the employee’s favor contrary to the legislative intent which has been specifically set out backing up these 1947 Amendments to provide a balance between the employer and employee.
Warren E. Burger: Do you think the National Labor Relations Board would count the ballot of the supervisor when they came to an election on the union?
Ralph M. Stockton, Jr.: They ruled them out of the bargaining union insofar as --
Warren E. Burger: Then I take it, you’re relating their acts, the supervisor’s acts to union activity is narrowed down to the proposition that when the foreman or other supervisor joins the union, he maybe giving -- aiding comfort to the union and indicating an employer attitude in favor of the union as far as the other employees are concerned.
Ralph M. Stockton, Jr.: That’s one possibility. But there are other possibilities, they -- for example, this legislative history says that no one whether employer or employee need to have as his agent, one is who is obligated to the other side. This -- pardon me sir.
Warren E. Burger: Well, have it finished.
Ralph M. Stockton, Jr.: This legislative history makes it clear that the conflict is recognized by Congress in enacting -- in taking supervisors out of the National Labor Relations Act in enacting 14 (a) and that it relates to the day to day activities and the possibility of domination of the union by the supervisory member of the union and says specifically evidence before the committee shows clearly that unionizing supervisors under the Labor Act is inconsistent with the purpose of the Act.
Warren E. Burger: What would be the posture of a foreman, these particular men, supervisors, if a strike were called, what would be their obligations with respect to the picket line? Most unions have a penalty for a member who crosses a picket line. Would these supervisors be subject to that?
Ralph M. Stockton, Jr.: I don’t know the answer Your Honor but I think the question reveals the problems that and the fact that we are actually dealing with questions of collective bargaining when you give a state court a right to give a remedy and state court damages in this type of situation. I might make this point, if the state right-to-work law is not preempted as to these supervisors’ then insofar as interstate commerce employers, employers within the scope of the Act. The only people protected would be the supervisors. The employees are obviously out. They are within the National Labor Relations Act.
Speaker: Mr. Stockton, may I ask. I noticed that Mr. Eubanks’ brief at page 3 has a short paragraph, third from the bottom. “The union began in organizing campaign that defendant Winston-Salem in North Carolina Stores in the spring of 1971. In the course of that organizing campaign, the three petitioners named herein signed a membership application to join the union and were accepted in the membership in April and May of 1971. There’s no evidence that they actually engaged in any pro-union activity.” Do you accept that as an active statement of facts?
Ralph M. Stockton, Jr.: Well, if Your Honor please, the case is here. This statement made by Mr. Eubanks is a statement he makes. The case is here actually almost pleading.
Speaker: No, I am asking you, does that accurately state the facts?
Ralph M. Stockton, Jr.: I don’t accept that as the actual facts. I say to the --
Speaker: Well do they engage in any other pro-union activity?
Ralph M. Stockton, Jr.: Yes sir. In my judgment they did. It’s not really in the record before this Court because it comes on before this Court on the pleadings in an affidavit.
Speaker: So let’s assume that -- well perhaps I should put it to you this way. Is it your position that standing alone, the fact that during an organizing campaign, they signed a membership application to join and were accepted in the membership? Is it your position that standing alone, that brings you within the proviso of 14 (a) as employees for the purpose of any law relating to collective bargaining?
Ralph M. Stockton, Jr.: Well if You Honor please, I would hate to restrict it that closely but I think that’s what --
Speaker: I know, I ask you whether standing alone you would take that position.
Ralph M. Stockton, Jr.: I would take that position and I think that’s what the Supreme Court of North Carolina has said because of the overriding legislative intent to discourage unionization of supervisors, clearly evidenced at the time of the enactment of the 1947 Amendments --
Speaker: May I ask a few facts about whether or not an employer could be or would be under the law in the National Labor Relations Act upheld bargaining with a bargaining agent you had supervisors as members. Now, let’s assume that -- let’s assume that this union won the election and I submit that it was -- other things being influenced with the bargaining agent, now the employer says I will refuse the bargain with you because you have some of my supervisors as members. What’s the -- if the lawyer -- is the employer excuse --
Ralph M. Stockton, Jr.: I am very much afraid the employer might have to bargain with that union. I don’t know the answer, Your Honor.
Speaker: Well, don’t you think that’s the answer to the question bears somewhat on the issue in this case?
Ralph M. Stockton, Jr.: It may and it again indicates the fact that state court action here is becoming intermeddled in a field which should be preempted to the Federal Courts.
Speaker: Well, you wouldn’t be making this argument that the supervisors have joined the union of their own and they never ask for any bargaining rights?
Ralph M. Stockton, Jr.: And then were fired? Yes, sir Your Honor. Because the --
Speaker: For the same reason?
Ralph M. Stockton, Jr.: Well, possibly for all the reasons I think the -- there is no more conflict where they joined they rank and file union, no question about that Your Honor.
Speaker: You say the proviso in 14 (a) gives you any comfort in that respect because the supervisor said we have no collective bargaining. We do not bargain with you at all. We are sort of involved.
Ralph M. Stockton, Jr.: I think 14 (a) would be more of a problem in that situation but here they joined in the rank and file union, along to by the other employees of the same employer.
Speaker: Where and the union itself is a collective bargaining -- in the business of collective bargaining?
Ralph M. Stockton, Jr.: That’s correct.
Speaker: Do you say Mr. Stockton that when these three supervisors went to the union and asked the union to file a complaint with the Labor Board for this conduct that that was engaging in union activity to ask the union to represent them?
Ralph M. Stockton, Jr.: I hadn’t thought of that Your Honor. I suppose that could be argued. They did go to the union. The union filed a complaint for them. They are -- it is union activity in a common sense respect I think if Your Honor please without any question. And I think we could take that position of --
Thurgood Marshall: But in this record do you have anything other than the fact that joined. Do you have anything else in that do you?
Ralph M. Stockton, Jr.: No sir, on the record.
Thurgood Marshall: Well that’s all we have for --
Ralph M. Stockton, Jr.: That is correct. The case came on a motion on the pleadings and the record is -- the allegation that they were fired because they joined the union which we moved to dismiss as not stating a claim upon which relief could be granted.
Thurgood Marshall: They could have resigned from the union the next day so far as we know.
Ralph M. Stockton, Jr.: Well that’s the record insofar as the case is before this Court if Your Honor please in the procedural manner in which it came here was the only way that could be actually.
Warren E. Burger: I’m not sure I got fully your response to the posture of the business of the supervisors in case of a strike. What about the picket line? If they crossed that they’d be fired from the union probably, wouldn’t they?
Ralph M. Stockton, Jr.: If they cross the picket line, yes sir Your Honor.
Warren E. Burger: And if -- or and they might be subject to penalties from the union if the union provided for the less -- as they generally do. Do you say that’s a conflict with the employer’s interest to have a supervisor who is in that position?
Ralph M. Stockton, Jr.: That’s correct Your Honor and the Congress throughout the hearing is on these statute referred to the conflict, the right to have a loyal supervisor. The possible conflict on the other side of the domination of the supervisor over the rank and file in a mixed union, and the situation here would be --
William H. Rehnquist: 14 (a). The first part of proviso says, nothing herein shall prohibit any individual employee employed as a supervisor from becoming or remembering or remaining a member of a labor organization, so that bridge has been crossed by Congress, this conflict business by blowing into a labor organization.
Ralph M. Stockton, Jr.: Well if Your Honor please, the other part is the most important and these hearings, the reports of the hearings make it very clear that the supervisors do not need to be treated as employees. And that --
William H. Rehnquist: Don’t have to be bargained with?
Ralph M. Stockton, Jr.: That’s right but that they don’t have any longer the right to join a union which is protected by the National Labor Relations Act. They’re out there, they restored to their rights before the Wagner Act according as to what Senator Taft says and --
William H. Rehnquist: How can you say that in view of the first section of 14 (a) that says, nothing herein shall prohibit any individual employed as a supervisor from becoming a member of a labor organization?
Ralph M. Stockton, Jr.: The legislative history says that Your Honor and some of the cases say --
William H. Rehnquist: Well, but if there’s a conflict between the language of the statute and the legislative history which do you take?
Ralph M. Stockton, Jr.: Here’s the point, there’s nothing to keep and it's said in here. In some of the cases too not from this Court but from Federal Court, nothing keeps a supervisor from joining the union. But in the interest of the balance of power and maintaining a loyal supervisor personnel, nothing keeps the employer for firing him for union activity, for joining a union outside.
William H. Rehnquist: And then you say he can be fired simply for joining a union?
Ralph M. Stockton, Jr.: I think we have to say it on this case on the record.
Speaker: Well, that’s it -- said he want to service you and that really means according to you that the labor law, the federal statute guarantees to the employer the right to fire any supervisor who joins the union?
Ralph M. Stockton, Jr.: Well --
Speaker: Now that is pretty hard to take, isn’t it in the view of the first sentence of 14 (a) that says nothing herein shall interfere with the right of supervisor to join?
Ralph M. Stockton, Jr.: No, sir. I don’t think it is taking in context with the entire statement and taking in context with -- that is the entire statement in 14 (a) that the supervisor does not have to treat him as an employee under the Act. He’s got a right to join the union but the employer on the other side has got the right to treat him not as an employee at all. He doesn’t have the protection of the Act. Not to be fired without -- fired for a union activity.
Speaker: That maybe so. But what you’re saying is that the federal law also prevents a state from giving the supervisor some protection. And in order to do that, you have to say that the labor law guarantees the employer the right to fire.
Ralph M. Stockton, Jr.: No, I would not go that far.
Speaker: Well, then how do you preempt state law?
Ralph M. Stockton, Jr.: Well you preempt state law simply because of the conflict created between the state and the federal for example.
Speaker: I take unless the federal law guarantees the right to fire. The state says, you don’t have the right to fire. If you fire you are going to be sued for damage, you maybe sued for damages.
Ralph M. Stockton, Jr.: The federal says though, you don’t have to treat him, supervisor employee --
Speaker: Put it in any words you wanted.
Ralph M. Stockton, Jr.: -- as an employee.
Speaker: Put it in any words you wanted. You are saying the federal statute guarantees the employer the right to fire as against any contrary provision of the state.
Ralph M. Stockton, Jr.: No sir, I’m saying that the state law is preempted in this particular field and that to create a right of action, civil damage right of action would create all the problems that Congress has talked about in the legislative history and that I say that a lot of part of 14 (a) is in that to provide against. For example, in this particular case, the employer would be subject to the federal law as to employees, the state law as to supervisors. The supervisors would be subject to state law and the employees would be subject to federal law. So that you would have the resulting absolute conflict between federal and state law in situations in which Congress has indicated and this Court has indicated. There should be some uniform approach at federal labor policy and we say that under the previous cases, Hanna Mining is the opposite of this case and I think I got into that for a moment. Hanna Mining through that Court of Appeals are because they took the position that supervisors where involved so Hanna Mining says no preemption of the state so that’s what we hope, Hanna Mining did not hope well as I attempted to explain a few minutes ago. Our position is if it please the Court that under the federal statutes, under the underlying purpose of a uniform approach, federal labor policy under the cases on preemption of this Court that the Supreme Court of North Carolina is correct and that the state is preempted from applying this particular statute as to supervisors in a state court damage action. Thank you.
Warren E. Burger: Thank you. Mr. Eubanks, do you have anything further? Let me begin by putting a question to you. Suppose the supervisors at the time the organization activity began, went around to the employees with cards asking employees to sign.
Larry L. Eubanks: I think they are engaging in union activity and that would be in subordination in the interest of the employer and they could be terminated.
Warren E. Burger: Let’s take it one step per move, suppose the supervisors just go around with the union business agent, stand there and say nothing while they are soliciting.
Larry L. Eubanks: Your Honor, I think that would be a closer question but I still think it would be giving comfort to the enemy to some extent. [Voice Overlap] And I think the employer is entitled to believe that his supervision would not participate in such conduct but the employer owes an obligation if I may continue to explain this answer. Owes an obligation to his, what they sometime later learn to be supervisors to explain to the supervisors that, look if we have a union campaign you are a supervisor. You see in this particular case, you got to remember that these three individuals, they just walked up just by some guy said, “Here, sign this card” and they said “okay,” they signed it then they have a hearing on the election petition and they are found to be supervisors and that’s all the evidence. No evidence of anything else. They don’t vote in election and the day after the election they get fired.
Warren E. Burger: I take it that you concede that any activity which could be regarded as aiding and assisting the union campaign would be grounds for dismissal.
Larry L. Eubanks: Your Honor, I think that counts in an appropriate factual context. I agree. But I do believe that an employer -- a person in a supervisory position is not anymore entitled or any less entitled to look after his own interests then or if people get paid by hour, I don’t see any distinction.
Warren E. Burger: Well, then the remedy there is to join a union of supervisors, isn’t it?
Larry L. Eubanks: No, sir because you got to remember. Not necessarily you see, the factual context in which this always comes up, would generally mean where an employee is promoted up into the supervisory class and being a member as an employee would accumulate certain retirement program benefits and all that sort of thing, and if he casts his membership in a union, he is going to lose his retirement program or whatever it might be.
Warren E. Burger: Well that’s not our case --
Larry L. Eubanks: No but --
Warren E. Burger: -- right here, isn’t it?
Larry L. Eubanks: No, but the reason I make in this point to the Court is that if at that point he has got to quit or be fired or leave the union, he is put in the situation of having to give up.
Warren E. Burger: Well don’t we have an unresolved, possibly, an unresolved factual question here namely whether the conduct of these supervisors in whatever they may have done, signing the card and talking to people, whatever, whether that constituted aiding and assisting the union’s organization campaign.
Larry L. Eubanks: I play the Court rule exactly that. Your Honor, I think that that’s the whole point that the Superior Court be asked and the Supreme Court be asked. We want an opportunity to try this case on these merits. If it proven and before jury or before the court that these three plaintiffs did in fact sponsor the union, went out and got people to sign card. Travel around with the union organizer or did any of those things that he in any rights no matter knows it’s not in the best interest of the employer. If it provide, he knows he is a supervisor, then I think that he has got grounds to fire man because the man should owe the employer some loyalty. But I don’t -- I think in the status of this case right now you got a situation where three individuals all they did was sign this card and I think people have a right to do that sort of thing. I submit to the Court to the constitution in the law and this common sense gives us the right to do that. I think --
Speaker: Mr. Eubanks.
Larry L. Eubanks: Yes, sir.
Speaker: Suppose the Vice President in charge of personnel joined the union to which the majority of his employees also belonged and which was the collective bargaining agency for the company. But also assume that this Vice President said of course, I am not going to take any part in negotiating with the union. Under your submission would the company be entitled to discharge him?
Larry L. Eubanks: Yes, sir.
Speaker: Why?
Larry L. Eubanks: I believe the employer would be entitled at that point to refuse to bargain with the union. So long as they kept that individual member of the union which represents the rank and file, I have no problem with that.
Speaker: I assume that he took no part in the bargaining. He said, “I am not going to have anything to do that. My duties relate to the personnel of this plant. Some body else can bargain.”
Larry L. Eubanks: I have no doubt that the employer would have every right at that point to refuse the bargaining with the union. I think that’s exactly what 14 (a) says.
Speaker: Suppose he was Executive Vice President --
Larry L. Eubanks: I don’t care.
Speaker: -- and had nothing to do with personnel.
Larry L. Eubanks: I don’t believe it would matter You Honor if he were President subject to the President making their life's decision in the company.
Speaker: Wait a minute, I don’t understand you. The Executive Vice President could not be discharged if he belonged to the union?
Larry L. Eubanks: No, Your Honor. I don't contend, as I understood the question if that was what could the -- what rights did the company have at that point. I think the company could say, look to the supervisor as the case might be. I believe that your interest in belonging to the union of the rank and file gave me grounds to not recognize this union and bargain with it from our rank and files. And I think 14 (a) clearly says, insofar as the right of being discharged, if the evidence says that all he did was join, Your Honor, I submit to the Court that they would have to say to him more then or prove more than the fact that he just -- like these men did sign the cards. I believe it takes more than that. Because I believe people got a right to do that.
Speaker: You don’t think that North Carolina Statute applies the biblical injunction against saving two masters?
Larry L. Eubanks: Your Honor, I certainly do not. I certainly submit to this Court and to you, Your Honor that there is hardly an organizational situation where there is organized labor in this, in the state I am from North Carolina, or in any other state which -- at which supervisors are not members of a union, one or more and in any sized company. Not necessary to get bargaining right or anything like that because they came up through the work. Yes. I don’t agree that being a member of a union is inimical to being loyal to my employer. I thank you very much.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: Petitioner Versus United States number 236 on the docket. Mr. Davis?
Edward J. Davis: Mr. Chief Justice may it please the Court. This case here is here on certiorari on question one; the petitioner relies on Rule 52(b) of the Federal Rules of Criminal Procedure. The petitioner was indicted on four counts, on bribery charges alleged to have been committed in violation of Title 18 U.S.C., Section 201. The petitioner was found not guilty on count one, which alleged that the petitioner bribed United States Revenue Agent, Roger S. Davis on October 24, 1961 and violated [Inaudible] to refrain from making an examination of books and records relating to sales and receipts of the bar and lounge at Clauson's Inn, Falmouth, Massachusetts in the years 1959 and 1960 and the first two quarters of the year 1961 from computing tax on said sales and receipts and reporting the same to the Internal Revenue Service. The tax alleged is a cabaret exercise tax that would attach if the operation was conducted with the entertainment of singing or dancing in connection with the playing of the orchestra or jukebox. There was evidence at the trial to support the charge in count one that the petitioner offered Agent Davis a bribe of $420 on October 21, 1961. On the record of the trial, there was no dispute that the petitioner gave and Agent Davis received $420 on October 21, 1961. The issue was, whether it was given and received as a bribe and the jury decided that is was not a bribe under the charge. Counts two, three and four alleged that the petitioner bribed Agent Davis on October 24, 1961 with intent to influence him to conceal from the government the sales and receipts of any cabaret tax due thereon for the petitioner's operation of the bar and lounge at Clauson's Inn for the years 1959, 1960, 1961 and thereafter. The jury returned guilty verdicts in counts two, three and four. The uncontroverted facts established by the government's evidence are set out for record references on pages 6 to 16 of the petitioner's brief. The facts show as follows: First of all, the record is darn of any activity in the petitioner's business operation at Clauson's Inn, showing that the petitioner conducted, held out or knowingly permitted the singing or dancing entertainment that would create the tax liability prior to October 16, 1961, at which time the policy was changed to offer such entertainment as shown on the books of the petitioner and on the defendant's Exhibit D in the record. Further at the trial, Government Agent Davis testified that he knows no basis for a cabaret tax liability on the operation prior to August 31, 1961. The Revenue Inspection Service organized a plan to entrap the petitioner by arranging for Agent Davis to go to Clauson's Inn on October 24, 1961 and meet with the petitioner at the petitioner's private office according to their stated purpose, to relate back, the conversation of Davis and the petitioner to the meeting of October 21, 1961. Agent Davis testified that his agreement with the petitioner was to return to the premises so that he could file a return if due. Agent Davis came to Clauson's Inn on October 24, 1961 in concert with other agents with a Minifon on his person. Invited himself into the petitioner's office and the Minifon recorded what the petitioner and Agent Davis said and did at the meeting. The Minifon recording is an evidence over objection and shows at the outset of the meeting of October 24, 1961, that the plan was frustrated by a statement of the petitioner stating, “I never did thought a cabaret tax, I never thought there was a need of it.” This statement registered the mind of the petitioner then and there with the force of a verbal act. Notwithstanding this statement, agent Davis proceeded to convert his operation into the making of cabaret tax claims, false and fictitious in view of the fact that he knew of no basis of cabaret tax for 1959, 1960 and 1961 prior to August 31, 1961. And that these statements of fact of claims were grossly false and grotesque in relation to the petitioner's operation. Agent Davis stated to the petitioner at this meeting on October 24, 1961, a claim of tax penalties, which was false on the facts. Immediately following this claim of penalty, agent Davis made the thrust for the bribe, “Now, I don't want to get greedy or anything, but well what would you be gaining?” In effect, the request for the bribe and the bribe resulted pursuant to the request. As under Sherman against United States conduct of the government agents relevant and important and the conduct cannot be disclaimed by the government, with respect to the facts that I have stated here, I would ask the Court's attention for the following. Referring to the meeting of October 21, 1961 the testimony of Agent Davis was, “I told him,” referring to the petitioner, “I asked him how much money was on the desk and he said $420. About that time I picked the money up, it was about 10 o'clock. I put it in my pocket and left his office.” When Agent Davis left Clauson's Inn with the $420 that Saturday night, he was in a predicament. Obviously, he was in violation of regulations of his department in any event. Under the regulations, if there was an indication of a bribe, he was to change the subject, close the file and leave. He had been attached to the Internal Revenue Service for two years and was in account of it. His visit at Clauson's on October 21, 1961 was routine. A policeman investigating a matter is routine would consider it as unthinkable, to take a bribe without a corroborating witness and then attempt to explain it to a superior. And the facts in this case, he testified that he first talked with a fellow agent after leaving the inn on the night of October 21, 1961 and then later, with his Group Chief at the instance of a fellow agent. At the time, Agent Davis on his own testimony had no basis for an excise tax on the petitioner's operation, for any time prior to August 31, 1961 and he did not state to the petitioner on October, 21, 1961 that he owed any amount prior to October 16, 1961. His superiors even know or ought to have known these facts and also the agreement of Agent Davis with the petitioner that he was to return to the premises. So that he, the petitioner, could file the return if due, before they started up with the task force equipped with Schmidt and Minifon devices to entrap the petitioner. On the testimony, none of the Revenue Service Agents know of any basis that the petitioner owed any excise tax on the operation. Consequently, there is involved in this plan, an operation of the Revenue Inspection Service Agents in concert with Agent Davis and imputable to Agent Davis at least, the relief of his own situation. In relation to the invading of the petitioner's mind by Agent Davis with lies to setup a false promise for tax liability to ensnare and provoke him into criminality, it is submitted is diabolic in aspect and sounds [Inaudible]. Under Sorrells and Sherman, entrapment symbolizes instigation of a crime by government officers. Also, the defense of entrapment is properly invoked from the officers of the law. Induce a person to commit a crime, which he would not otherwise have committed. Agent Davis from the facts of this case instigated, incited, persuaded and induced the petitioner to make the bribe in circumstances where the agent created a false framework of facts in the petitioner's mind of cabaret tax liability, impossible to have been conceived by the petitioner.
Earl Warren: Was the issue of entrapment raised at the trail?
Edward J. Davis: And because in my argument I brought it up and the Judge charged on the Law of Entrapment.
Earl Warren: Well, when the evidence was introduced, was there any objection on the grounds of entrapment?
Edward J. Davis: No, not as such, not until the time of the argument and of course, my argument here is, on the facts as established by the government's case, with the government's evidence, having been raised with the argument and the Judge having charged on it, we are properly here on that issue. May I proceed, Your Honor?
Earl Warren: Yes you may, yes certainly.
Edward J. Davis: The offense --
John M. Harlan II: The issue was submitted to the jury, was not?
Edward J. Davis: It was submitted to the jury.
John M. Harlan II: Improper instructions?
Edward J. Davis: Improper instructions as will be shown under question two.
Potter Stewart: Did you request instructions in addition?
Edward J. Davis: No, that's here on Rule 52(b) also, that's here on Rule 52(b) here also.
Potter Stewart: Well, is the answer then no, you did not request instructions?
Edward J. Davis: The answer is no.
Potter Stewart: And did you object to the instructions given?
Edward J. Davis: No, I did not. The offense on the facts on the record could not have been committed without the construction of these false premises by Agent Davis implanting them in the mind of the petitioner and these acts of Agent Davis manifest the construction and creation of the crime by Agent Davis. It could not be found on any basis whatsoever that the petitioner was pursuing a criminal design with respect to the charges in counts two, three and four and specially, such a design which he had already conceived with relation to the events of the meeting of October 24, 1961.
Earl Warren: Did the defendant testify in the case?
Edward J. Davis: Yes, he did.
Earl Warren: Did he testify that he was entrapped?
Edward J. Davis: He did not. He testified in effect that he was nervous and didn't know much about what happened, it was all been taken in the Minifon and the entire --
Earl Warren: He didn't know it was being taken on the Minifon?
Edward J. Davis: Oh no, he didn't know.
Earl Warren: Well, did he say he was entrapped into giving this money?
Edward J. Davis: My only answer is that, he testified as to the second meeting of October 24 in effect that there were a lot of claims and charges and he in effect didn't realize the whole part of it and he couldn't testify too much on it. I'll have to refer to the record on that as to what he said.
Tom C. Clark: And he knew he was an agent?
Edward J. Davis: What's that?
Tom C. Clark: And he knew he was an agent?
Edward J. Davis: Oh yeah. And he knew that the government agent was there under precise agreement to come there to make out that is the petitioner was to make out a return if due that was the exact agreement. The government in its brief --
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: He didn't dispute that. There was no dispute about that and on the issue, he was found not guilty of a bribe on count one.
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: The judge went very far in his instructions in that respect, I'll say that. I don't think that there are any intendments the way with respect to of the fact was, he was found not guilty of the charge, that's right.
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: Very pointedly sir. The government in its brief, I'm glad Your Honor brought that up, I think I can answer it at this time, the government in its brief imputes to the petitioner two alleged misconceptions, first in effect that the equivalent of count one was an adjudication of evidence requiring the rejecting of the government's evidence and accepting the petitioner's version. On the contrary, the petitioner's position was that the government's evidence in the case as I stated it, establishes entrapment as a matter of law. Secondly, the government imputes to the petitioner in its brief that by reason of the acquittal on count one the case must be judged as though no bribe offer had been made by the petitioner on October 21. Again, the petitioner answers, that no such assumption has been made as an effect of acquittal on count one, but that the offer of the bribe is in effaced, because there was entrapment on the government's evidence. If in fact the crime of bribery were to be committed on October 21, 1961 under Sorrells and Sherman, it would be the duty of officials to detect and procure the evidence, but not to instigate and create a new such crime or another crime on October 24, 1961. This principle was the holding in Sam Yick against the United States, 240 Federal, cited in Sorrells with approval where a Chinese attempted to bribe an officer relating to smuggling Chinese. Well there apart, enticed the accused to combine with him in illegal smuggling of Chinese and then charged him with a lot of crime. This was held to constitute entrapment. In the case of United States against Klosterman, 248 Federal second set out at length in the brief, the petitioner's brief, it was decided as a matter of law, there was illegal entrapment on the facts where a federal agent was charged with bribery to close an income tax case. Klosterman predicated his decision on Sorrells and the case has particular significance to the petitioner's case here. Klosterman on the basis of Sorrells stated the issue as whether or not the criminal intent proceeded from the government agents of whether or not these agents simply afforded opportunities to one already disclosed to be alleged criminality. Klosterman decided that the test to be applied under the principles governing illegal entrapment is, “Was the defendant a man otherwise innocent who would not have committed the crime, but for official solicitation or was he predisposed to pursue a criminal desire, which he have already conceived.”
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: October 24th.
Arthur J. Goldberg: 24th.
Edward J. Davis: Yes.
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: I am coming down to that Your Honor please in my second question. As the Court said in Klosterman, an alleged bribe in connection with an income tax matter is not a recurring crime in a series. The defendant Revenue Agent Deeney in the case actually conceived the plan to participate in a bribe to close a tax case and approached a fellow agent that they act together on it, a fact, which the Court deemed a criminal act by itself. Later agent Deeney events the intention to withdraw and as shown by the excessive persuasion, he abandoned the intent and the particular intent for the commission of the bribery was thus originated and engineered by the government officers. The Court so held and so said. In the instant case there was more than excessive persuasion by the government agent. He originated and engineered the false framework of facts as to tax liability in the petitioner's mind, which was relation to persuasion was recklessly and grossly false, grotesquely in oddment with respect to the subject matter and the petition. A brief examination of the record on pages 84 and 85 at a glance will show this. On the facts, it could be not found that the defendant was pursuing a criminal design, which he had already conceived with relation to the events of October 24, 1961, or a general or a special intent to commit the alleged bribe when the government agent conceived and planned it on October 24, 1961 and in terms of causality, it is inescapable that the crime would not have been committed but for official solicitation. Now, if Your Honor please, I will turn to question two.
John M. Harlan II: Before you leave that, do you know [Inaudible]
Edward J. Davis: My answer, Your Honor, is two-fold. First of all, on the established evidence, if they did take the evidence into consideration, that the entrapment as a matter of law, so it should have been beyond that consideration. Now secondly, if the question would have to come up afresh with a severance of a trial, it might very well be objected to on the basis in the view of the acquittal as a fragmentation of evidence. But our position here is that on the evidence and it's clear on the Minifon that was introduced by the government and the government's witness that on the events taking place on October 24, 1961 those facts show entrapment as a matter of law irrespective of what occurred on October 21, 1961, that is my position. Now if I may turn to the charge and may I ask the Court's attention to page 27 of the petitioner's brief? The quote at the bottom of the page charged, now the law with respect to entrapment is this. “If a government agent by improper means or over-bearing persuasion or wrongful conduct induces a person of ordinary firmness to commit a crime, which he would not otherwise commit, then under those circumstances, the defendant is to be acquitted, not because he did not do something wrongful, but because he was induced to do a wrongful act, which he would not otherwise have done.” Now on the third paragraph, on page 28, the burden of proof with respect to entrapment is on the defendant. Now, it is to be noted that there was no issue as to how an ordinary person would have reacted or done in the position of the defendant. The issue was whether the defendant was entrapped, not whether an ordinary person would have been, and this is expressly filed and held in United States against Monroe 257 Federal predicating in on Sherman in this Court.
William O. Douglas: Were there any exceptions to this exemption?
Edward J. Davis: No there not Your Honor.
William O. Douglas: Did you offer instructions on this Court and they refused?
Edward J. Davis: No I did not. Further, the burden of proof must be allocated. The burden is upon the defendant to produce evidence that government agents induced him to commit the crime, and whenever this has been brought up by the defendant, the government must prove beyond a reasonable doubt that inducement was not the cause, the creator of the crime and I cite United States and Laundry and Lefkowitz against United States as appears on page 29. Now may I ask the Court's attention to pages 30 and 31, and I say this whole matter is clearly elucidated by Judge Learned Hand in the case of United States against Sherman 200 Federal.2d. May I ask your honor's attention particularly to page 31? Judge Learned Hand is speaking of the charge to the jury -- of the Court to the jury where the jury had returned for instructions and the judge concluded his charge as follows. “The law says you can't trick anyone into it by artifice or fraud such as giving a fabulous offer, or telling somebody that you are in excruciating pain and you must have it, or some such inducement that would put the idea into somebody's head where it never existed before.” Continuing in the words of Judge Learned Hand, “With those as the last words on the subject the jury retired and came back almost at once with a verdict of guilty. So far it concerns the defense, that is the inducement, it was complete without "trickery" or "fraud." It includes soliciting, proposing, initiating, broaching or suggesting the commission of the offence charged. Now on the matter -- the issue was whether the defendant was entrapped not whether an ordinary person would have been, the Court continues, “We are not sure whether the idea that must not have existed before in somebody's head, we assume this meant the accused was the idea of committing the particular offence charged. If so, it added nothing to inducement simpliciter.” And the Court goes on, “No view can we find that the cause was presented to the jury in such terms that they could apply the law as we understand it, and the error, which went to the very heart of the prosecution, was grave enough to be noticed, although the defense had not accepted to it. Fed.Rules Crim.Proc.Rule 52(b).
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: Yes, Your Honor.
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: Well, I think I can move into it directly by saying and I base it what I have set forth in my brief. Now the law with respect to entrapment is this, “if a government agent by improper means or over-bearing persuasion or wrongful conduct induces a person of ordinary firmness to commit a crime.“ I think that shows error with respect to the matter of putting it into on the thesis of an ordinary man, but in any event, there is no question about it, on the judge's charge on the burden of proof, as I have stated in connection with Mr. Judge Learned Hand had said.
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: I think the trouble with that Your Honor is that he didn't allocate proof, and if so, it wasn't allocated exactly on the charge.
Arthur J. Goldberg: [Inaudible]
Edward J. Davis: That's right. Now, Your Honor, I would like to address myself to question three. Agent Davis testified with respect to the meeting of October 24, 1961 on inquiry by the Court calling for precise statement. What I agree to was to return to the premises so that he the petitioner could file a return “If Do”. Thus the government Agent Davis' indifference to the private office of the petitioner under a precise agreement to transact clearly defined legal government business with the petitioner. And his presence there represented to the petitioner, this time with the Minifon on this person under instructions from his superiors, he invited himself into the petitioner's private office with the purpose of business doing crime. At the trial, admission of the testimony of the Agent Davis on the Minifon recording was objected to, as evidence obtained by unreasonable search under the Fourth Amendment. If the evidence were excluded, the case in counts two, three and four would trail for lack of proof. Under application of Gouled and Silverman, the evidence was obtained via unreasonable search under the Fourth Amendment and not to have been excluded under the exclusionary rule of evidence. On the facts, the condition of the status to the planned operating to entrap was a misrepresentation of the agent's status. He thus gained entrance to the office by misrepresentation of status and his presence there was by stealth and subterfuge, but the agent saw and heard the occurrences recorded on the Minifon proceeded from the creative activity of the agent and the stealth thus secured his presence there.
William J. Brennan, Jr.: Mr. Davis, this Minifon, is that a trade name?
Edward J. Davis: Yes, it's an electronic device that is attached to the person, the agent in this case and it records waves and it could be transferred outside, but it records -- it is a two-fold affair. It records right on the machine what is said and done on this machine.
William J. Brennan, Jr.: On a tape or something?
Edward J. Davis: On a wired recorder.
William J. Brennan, Jr.: And it is a trade name?
Edward J. Davis: It's a trade name. Under the circumstances, I have about three or four minutes on this constitutional question. Your honor, please may I have it.
Earl Warren: You may.
Edward J. Davis: Thank you very much. Well, the intention by the agent by direction of his superiors in the office of the petitioner under the deception with the Minifon on this person. I argue, was such as to exercise powers in reality more there if an additional government agent were upon the premises by stealth in concert with Agent Davis to procure evidence as to what was said and done. It is submitted that Agent Davis was in the office by stealth without permission by reason of misrepresentation of status on the Gouled versus United States. Now I have cited in my brief, the case of United States against Lefkowitz on page 46. And in effect, the holding there that where there was a misrepresentation of status by a federal agent. Evidence in the nature of information as extracted from papers not covered by the agent's status was in violation of the Fourth and Fifth Amendments as decided by Boyd. Now that the context of the profession extents from prying or spying into the private papers in the home or office was specifically argued by counsels for Gouled in the brief on which Charles Evan Hughes was Consulate. It was so argued by Serjeant Glynn with great force in Entick against Carrington cited in Silverman and the principle so like it was approved by that Court. The principle says to invasion of privacy enunciated by Entick and Carrington were of course approved and formed the foundation of Boyd. On coming to this that this principle and the principles enunciated in Gouled -- more or so three minutes --
Earl Warren: You may take two minutes more.
Edward J. Davis: -- to the statement in Silverman admitted to as an essential to the holding of the case. “This Court is never held at a federal officer may without warrant or without consent physically entrench into a man's office or home there secretly observe or listen and relate at the man's subsequent criminal trial what was seen or heard.” It is submitted that the entrenching by agent Davis under the deception stated with a Minifon on his presence on the misrepresentation of his status was the invasion of a constitutionally protected area by stealth with physical powers and reality more powerful that if an additional government agent were upon the premises by stealth in concert with agent Davis to procure evidence as to what was said and done and as Silverman was prohibited by the Fourth Amendment. Shall I have a minute?
Earl Warren: All right, finish it up.
Edward J. Davis: The government relies on, On Lee versus United States, 343 Untied States.
Earl Warren: Are you reading from your brief?
Edward J. Davis: Not from my brief, from notes. There are three elements of essential difference. You know, On Lee, first the agent was not a federal officer or employee and was a stool pigeon employed through the other. Secondly, the stool pigeon used an electronic device to record this in the Chinese laundry open to the public. Third, there was the question of relationship. There was absent the relationship with a federal officer in a private office to have conducted a brief and legal tax business with United States, which by deception was converted to a plan to entrap. This relationship I argue comes within purview of the statement by Mr. Justice Stewart in Lanza against the State of New York, in which he said with respect to an area immunized by the constitution, the relationship was the line [Inaudible] would particularize confidentiality, must continue to receive safety and protection.
Earl Warren: Mr. Claiborne.
Louis F. Claiborne: Mr. Chief Justice, may it please the Court. On the issue of entrapment, I think the full answer is disclosed by an analysis of the testimony in the record. I won't go through it in detail. I simply want to point out that there were only fourth times when entrapment can be claimed. There were four visits by agent to the premises, Clauson's Inn. The first time was on August 31st around noon. At that time no entrapment is claimed, no offer was made, no bribe was received. Later that same evening August 31st there was a second visit, but during this visit there was by agreement in the testimony, no conversation between the agent and petitioner and we come to October the 21st in the evening. At that time as I understand the petitioner's argument both in his brief and today, no entrapment is claimed. It is however true that the agent accepted $420 from the petitioner, but he did so according to his testimony after refusing it several times and without in anyway inducing it. This in our minds establishes the petitioner's willingness to bribe the agent and is the beginning of the criminal design to settle his tax liability through bribe. The same design continues three days later on October the 24th when there is second meeting.
Earl Warren: Before you get to that Mr. Claiborne, what was the defendant's explanation as to the October 21st payment of 400 and some dollars?
Louis F. Claiborne: He says he was paying that amount to the agent in order that the agent on his own time prepare returns for the petitioner. However, the testimony shows that the petitioner was in his words anxious to get a friendly and not a belligerent agent. On Page 111 of the record, the following occurred. Well, it's on Page – well, page 111. Now up to that, I'm reading from the third question down, now up to that time, had there been any talk in any connection whatsoever that money of any kind, this is petitioner testifying, not up to that time sir, he is testifying on direct examination and answering questions from his own counsel.
Earl Warren: Petitioner's testimony.
Louis F. Claiborne: Petitioner's testimony thought in answer to his own counsel's questions. Next question, now after that statement that [Inaudible] was made, what next occurred, what was said by you and what was said by him. Petitioner answers, “Well, I said to Mr. Davis, I said, I don't know how to ask you this, but I would rather have you as a friendly agent than a belligerent one,” something to that effect. I said, “Would you be willing to help me to prepare and form a cabaret tax whenever it comes due and whatever is necessary to make it up, if you wish to do this and on your own time, I will pay for it.” This is the Petitioner's own explanation of the reason to which he gave the $420. But according to the Petitioner himself, this is volunteered by him before there is any question of money as the beginning to, before the subject of money even comes up. We think it's therefore clear that the idea of transfer of money for whatever purpose originated in the Petitioner's mind.
Arthur J. Goldberg: This is on October 21st?
Louis F. Claiborne: This is on October 21st. Now, as I understand it, the Petitioner makes no claim with respect to October 21st, but he makes no claim that he was entrapped on that day.
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: I think Your Honor's question to Petitioner's counsel resolved that point, however, the acquittal as to October 21st in view of the Judge's instructions merely shows that the jury did not believe that the money was given for the purpose of preventing the agent from examining the books, but it did not show that the money may not have been given for another purpose such as suppressing the tax liability regardless of the books. As a matter of fact, the tax liability wouldn't have appeared in the books. Now, getting to October the 24th, everyone agrees, I take it that the only testimony with regard to that date which the jury can have considered is the recording itself, recording is complete. It was authenticated. There has never been any question about it being a true and accurate recording of the events that took place on that date. Now as I understand, the petitioner, his only referenced even for October the 24th, his the only pinpointed reference to any claim of entrapment is after the agent goes through a long series of computations and ends up with a figure of $10,000 or $12,000 as liability and makes some remark at that point “I don't want to be greedy.” I think it's important to point out what had already occurred on that same date according to the same recording before any such statement was made. On page 81 of the record, the recording is reproduced in the record from pages 80 to 94, this is right at the beginning. The Agent walks in, the Petitioner asking to have lunch, the Agent refuses, suggests they go into the office, they do so. The Agent then says, how long you have been in business, the Petitioner replies, two and a half years, but no facts or figures have yet been detailed. And at this point, according to the transcripts of the recording, at page 81 towards the bottom, Lopez says, “I want you to have my confidence and I want to have your confidence too.” Davis says “Well, what is it.” Lopez says again, “Listen, I want you to understand 100% confidential, I want you to place as much confidence in me too” and then this interruption and turning to page, we get a further statement by Lopez. “Whatever we decide to do from hereon, I'd like you to be on my side and visit with me. Deduct anything you think you should and I'll be happy too, because you may prevent something coming up in the office,” and so forth. Clearly there, the bribe offer is already being made long before the statement complained of which appears on page 85 towards the bottom of the page. I think the record so clearly dispels any notions of entrapment as a matter of law that I need not pursue that point. There is a claim that the instructions were erroneous. One of the members of the Court has already suggested that the instruction as to burden of proof may well be cured by the general instruction on burden of proof, which appears at page 129 of the record. But in any event, even conceding that there was an error in the charge, we take the position that entrapment was not an issue in the case at all. It was not even a tax issue, need not have been submitted to the jury. The judge in submitting it to the jury was merely responding to the oral argument of the defendant. He was perhaps giving defense counsel, something harmless for nothing. He gave the petitioner more than he received in our view. It's perfectly clear that on October 24th, the Defendant, the Petitioner was trapped. A trap was set for him, in the sense that the evidence of bribe, which had already taken place was deliberately set up, but this is a thoughtcrime in saying that he was entrapped in the legal sense. This is simply obtaining evidence, it wasn't putting in his mind the idea of committing the offense.
Earl Warren: Is there any difference to the opinion as to whether the agent actually fabricated a claim of taxes against this man and that it was purely fictitious, it didn't exist at all except in the mind of the Agent?
Louis F. Claiborne: Your Honor, the testimony of the agent is very clear that on two prior occasions he had observed that [Inaudible] which just --
Earl Warren: I can't quite hear you Mr. Claiborne.
Louis F. Claiborne: I'm sorry.
Earl Warren: Would you speak little louder?
Louis F. Claiborne: The Agent's testimony is very clear that he had on two previous occasions, October the 31st at noon and in evening August 31st, at noon and the evening and again on October the 21st, witnessed dancing in the premises, which would subject the Petitioner to cabaret tax. Now even this County, the agent's testimony, the recording shows that the petitioner admits the dancing had taken place long before October 16th because he makes a reference to the summer months. He says, it's very difficult to stop the dancing on weekends on Saturday nights. So he is -- by his own means or by the recording, clearly aware of the fact that there had been dancing going on that he hasn't been able to stop it, but this does subject him to tax liability. The extent of the liabilities, the accuracy of the figures maybe subject to dispute, but the fact of a genuine liability I think is beyond question.
Earl Warren: How far back did the agent attempt to trace that? Was it to prior years?
Louis F. Claiborne: The claim was made for 1959, 1960 and 1961 all of which is occurring in the fall of 1961. The reason for choosing 1959 is that, that is when the Petitioner began an operation at those premises.
Earl Warren: Is there anything in the record at all to show that in 1959 or 1960 that he was acting, he was running a cabaret, in the sense that he'd have to be taxed for it?
Louis F. Claiborne: Well, there is this, Your Honor that when the agent is making these computations to the petitioner, all this is attested by the recording, the Petitioner does not disclaim a liability for prior years, he might say -- as he now says, all this dancing only started recently, I didn't have it back in 1959, but he says no such thing. He acquiesces in the computation going back to March of 1959, when he took over the operation. So there is no claim that there was a change in status except his belated claim that on October 16, 1961, it was changed. But that belied by the admission that it occurred during the summer months.
Earl Warren: So it's a position where the government that it cannot be truthfully said, that this agent fabricated a false claim of tax liability against the petitioner?
Louis F. Claiborne: That is correct Your Honor that is the government's position. To conclude on this point, the court I think already aware the petitioner's claim is very belated. He did not defend on a theory of entrapment. He made no motion for judgment of acquittal on the ground of entrapment or for that matter on any other ground.
Potter Stewart: When you say he did not defend on the basis of entrapment, what precisely do you mean, this is not something that you have to allege in your -- it's on the original pleadings like this, not covered by a pleading of not guilty, isn't it?
Louis F. Claiborne: I understand that Your Honor, but his own testimony did take the stand always was “I didn't do it. The money I gave was for preparing my tax return". He might have said granted that I gave the money in response to a request for a bribe that it wasn't my idea, it was the agent's idea. He might have defended on the ground.
John M. Harlan II: Through his own testimony.
Louis F. Claiborne: Through his own testimony. And then of course his attorney could have raised the issue more directly by suggesting a charge, which he did not, by asking the judge to charge on his own, which he did not. By arguing even to the jury less ambiguously than he did, charged to jury, I mean the closing argument of the defense counsel is not in the record. However, we have filed the copy of it with the Court since the question has come up as to a possible raising of the issue there. And finally of course, the defendant did not accept the charge given and the errors he now complains of were only raised on appeal. Now turning to the second issue in the case, the use -- well, as I understand the petitioner's argument, he objects not only to the introduction of the recording, but he objects equally to testimony of the agent with respect to the conversation that was recorded. Nevertheless, we treat the two questions somewhat separately. As to the agent himself, clearly he was guilty of no trespass in entering the petitioner's office. He used no force, no threats, no substitute. He didn't even make an affirmative misrepresentation. He had previously identified himself as a revenue agent, he was well known to be a revenue agent. He did, however, misrepresent his purpose, if you will, in that he didn't say, “I will reveal what you tell me” but that is the extent of any misrepresentation. It is certainly less than the misrepresentation On Lee on the question of trespass by misrepresentation. We of course feel this case is governed by the On Lee decision. Now as per the instruments, it is argued that the instrument was an uninvited guest, the instrument itself was a trespasser. Again, the instrument here is no more trespasser other than the instrument you know On Lee. You know On Lee, it was transmitting device, here it was a recording device. Properly speaking, the instrument is more an extension of the agent than a separate third person. It merely duplicates by an electrical recording what the agent himself mentally records. But even if there were a trespass, we could not understand the need to exclude the evidence, because there was no connection between the trespass if there was one and the evidence obtained, which was not physical evidence taken from a room, this was not eavesdropping on a private conversation that was peculiar to that room. The bribe offer could just as well have taken place elsewhere. In fact, the defendant was apparently willing to discuss the bribe at lunch in the dinning room. It was the petitioner's -- it was the agent's suggestion that they go into the office and his only reason for so suggesting was that he have been told, he'd get better acoustical results on his machine if he did it in the quiet of the office. It wasn't privacy of the office, it was a quiet of the office that was helpful to his mechanical recording. There is another fact which removes this case from any question of invasion of privacy in our view and that is that conversation which the machine overhears is not one between two strangers to the machine. It's not eavesdropping on a private conversation between two people neither of whom knows that he is being overheard. One of the parties to the conversation from the beginning intends to divulge. The other party knows that he is talking to a Federal Law Enforcement Officer. He knows that he bears the risk that there maybe a breach of this confidence that he is divulging. He takes the calculated risk and that risk is in no way augmented because the conversation is also being recorded.
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: But Your Honor, I would have to admit that the problem of proof is facilitated by the use of the machine, but --
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: From the point of view has been -- from the point of view of invasion of privacy, I don't think the machine changes the situation. One party, the agent is going to divulge the conversation in any event. He is going to publish it. He is going to destroy whatever privacy existed. The fact that another or a machine is going to duplicate this publication does not affect the question of privacy in my view. It certainly is useful to the government. In fact, it's indispensable to the government in many such cases to obtain a second witness whether it'd be a live witness or machine.
Arthur J. Goldberg: Is there a constant reaction to [Inaudible]
Louis F. Claiborne: Your Honor, I refer to the Chief Justice's opinion in Rathbun, it is part of the risk that in case of a telephone someone will be on the extension. I suppose that the use of such device as the Minifon is not so unusual as to make it not also part of the risk when you're attempting to bribe a public official. I think a good answer to the point was given by the Court of Appeals for the Ninth Circuit in the Todisco case, which we cite in our brief, but addressing itself particularly the points Your Honor made the court said this. “The right which appellant here says would seem to be little more than the right to rely upon the agent's apparent inability to produce proof beyond his own testimony of the substance of the conversation in which he engaged. This has little relation to an intrusion upon privacy, which is the problem at the heart of the constitution of issues presented by Easter.” We do defend the procedure used here, we defend it because it is necessary and proper procedure for government agents, especially in cases where otherwise the testimony would be as if they hadn't hit. We conclude by saying that the governmental activity in this case is in all respects correct, proper. There is no occasion to invoke an exclusionary rule. There has been no violation of the constitution. There has been no violation of Federal Law. There has been no violation of the Federal rule. There hasn't been a violation of state Law for that matter. Therefore, there is no reason to exclude the evidence received. For these reasons, we think the judgment should be affirmed.