Earl Warren: Number 530, United Automobile Workers versus Wisconsin Employment Relations Board. Mrs. Lampert.
Beatrice Lampert: May it please the Court. The judgment which is challenged in this case proscribes mass picketing, violence, traffic obstructions and related activities. As I understood counsel in his argument yesterday, the authority of the State to regulate those activities, I believe, I quote correctly when I say "to regulate and punish those activities is not questioned." As I understood the questioning, I believe counsel said that they did not question the State's authority either to enter injunctions proscribing such conduct in equity proceedings on the application of private parties but they do question the State's authority to do the regulation in the manner in which it was done in this case. I think therefore it may be more helpful if I start out on a practical approach to the problem Wisconsin and the attempts Wisconsin has made to solve the problem. I -- I think that there's no question that if a State has authority to preserve the peace and to regulate the type of conduct that is here involved, it has a correlative duty unless one has been a law enforcement officer on the scene of a mass labor dispute with all the bitterness, the hostility, the potential explosiveness to others, he can't possibly realize the problem that it is involved, but he -- they can realize that it is no privilege to do such regulation, it's a duty. We are not here because we're power hungry. We're here because we've been faced with the demand of our citizens to control this difficult situation. It's not something that we would like to do if anybody else is willing to. Anybody -- any agency which is able and willing to control the situation is more than welcome. But up to date, there has been no agency but ourselves and we have met with the unpleasant resentment of -- from one side if we do and from resentment from the other side if we don't. But the problem is there. So we have tried to meet it and this is how we have done it. We feel that in these localities, where feelings are run -- running extremely high as they always do in small communities where there is a labor dispute, that we must have a method that is far enough removed from the disputants themselves to be impartial.At the same time, we must have a close enough and flexible enough to move rapidly. Wisconsin, I think both legislatively and administratively, has made an honest effort to meet that situation without encroaching upon the area which we believe this Court says Congress has intended should be preempted. The legislative plan has been devised in an attempt to find something more expeditious and flexible than mere punishment and putting in jail of individuals and also to meet that situation of impartiality in the particular dispute. It combines some of the elements of -- of criminal statutes, some of the elements of equity injunction procedure but with the more objectionable element of both omitted and with a more expeditious and effective procedure, we believe, substituted. Instead of the general proscription of say mass picketing by a criminal law applicable throughout the entire State, Wisconsin has said that we will appoint a body to conduct a full hearing and -- and then devise and define those proscriptions according to the particular circumstances. So that everybody may know exactly what is put here but in -- in a particular case instead of having to take the chance of deciding for himself whether two or five or ten people in an area does involve and constitute mass picketing. Now, this -- this is akin to the formulation of a statutory definition of -- which might be found in a criminal law. It does not involve in the first instance any penalty at all. This is -- it follows a full hearing and which both sides are entitled to present anything they feel is pertinent. They -- the full hearing was held by the State Labor Board in this case and it found there have been assaults, injury to property, mass picketing, of arrests, obstruction of entrance or egress, violence of various types. Now, it is -- it was suggested in the reply brief of the appellant, I believe, that it is not conceded that these things occur. However, the appellant did not elect to print any evidence. We are before the Court on basis of the findings and since what is prohibited by the judgment is the same type of conduct which was found to have occurred. Presumably, there would be no reason for being here if they had not occurred. In any event, the kind of conduct described in the findings of the Board is all that is prohibited. So that if it did not occur and if it is not anticipated by the appellants that they want to engage in it in the future, certainly, nobody has been prejudiced. Now, the second step in the legislative plan is a full court review. The Board's order carries no penalty neither does it mean anything until it has been enforced by a court of law. The enforcement is strictly, of course, on review. There's no more evidence but the enforcement procedure guarantees the right of all parties to have the legal issues heard and have the Court to determine whether the Board acted properly within its authority and legally. The Court in this case, it has been suggested, was not satisfied with the order but felt itself bound by rules of law. I think, perhaps, counsel drew inferences from the statement quoted in the brief that are not warranted. I think there's no question that the Court sitting in review felt that it would like to get out, get its hands on the said dispute and settle it if it could. It would like, of course, as any appellate court would to -- to solve the whole problem right then and there. So, the Court was talking about the fact that it had certain restrictions because it was sitting in review only but there was no question in the Courts' mind. And I -- I think I will read a bit of the -- just a bit of the Court's decision that the subject matter proscribed was perfectly, properly prohibited. The Court said it would seem most unreasonable and illogical if any court should hold that a state court of record would be impotent to restrain the Commission of acts that are in themselves illegal per se. There is no inherent right on the part of individual members of the union or the union as an organization or its officers in directing it to engage in mass picketing. There is no inherent right on the part of any of your -- members of unions to intimidate, to threaten, to assault or to unlawfully interfere with the liberties of any person. So, it would seem to me that the complaint is groundless when it is exerted on the proposition that those types of actions should not be restrained. Now, that's all we're doing in the court below. None of the courts had any question in their mind if what the Board had done was proper, of course, the Court as well as the Board would have like to go farther and settle the labor dispute. But the very fact that we restrained ourselves to the portion of the area which is properly within our jurisdiction should not be a point of criticism. It should be rather, I think, a recognition that we have tried to -- to assume our proper share in the governmental scheme and no more. Now, it was suggested, I think at this point it might be well to -- to take up the discussion that was held yesterday on the fact that -- that counsel apparently concedes that it would be proper for a state court to issue an injunction against this identical conduct if it had been applied for by a private party and issued under general rules of equity. I would like to call the Court's attention to the fact that Wisconsin Supreme Court has said that the State Board has discretion to grant or withhold a remedy on equitable principles fully as much as could be done under the older common law injunction cases. I did not cite the case in my brief, and I will cite it for the benefit of the Court, Appleton Chair Corporation versus United Brotherhood, 239, Wis.337, 1 N.W.2d 188 in which there was wrongful conduct shown before the Board on the part of both an employer and a labor organization. The Board, the State Board, issued a remedy solely against the employer. The employer complained that that was not proper, that it had been shown that the labor organization too was guilty of unfair labor practices. Nonetheless, the Supreme Court said that the statute contemplated that the Board should weigh the conduct of the adverse parties and should give what remedy at peace it deemed just to the private rights and necessary for the public protection. And it is not true in any event in most states, at least, including Wisconsin that an injunction can be obtained in connection with a labor dispute irrespective of statutes defining the labor policy of the State. Wisconsin has, as most states, has its -- the Norris-LaGuardia Act which prescribes principles under the labor policy of the State which we strict the issuance of injunctions in connection with labor disputes irrespective of who the moving party is. All right, now, that is the second step to --
Felix Frankfurter: (Inaudible) totally speaking, what limitation against the prohibition of using labor injunction under the Wisconsin statute?
Beatrice Lampert: Wisconsin has a little Norris–LaGuardia Act almost identical. In fact, Wisconsin adopted it first and it is -- it was the model for the federal statute.
Felix Frankfurter: (Inaudible)
Beatrice Lampert: Of course -- one of the -- the objections -- some of the objections to the labor injunction suit, of course, is the courts are too busy that they -- they -- it takes a long time for them to get around to a trial of the facts. There has been a tendency to issue ex parte injunctions because the courts didn't have time to -- to try the cases solely to -- those were reasons why Wisconsin felt we will establish a labor board that is always supposed to be ready at a moments notice to take care of an emergency.
Speaker: How speedily does this procedure operate? How speedily does it operate in this case?
Beatrice Lampert: It was about a little over a month from this case, although it has operated much more rapidly in some others. I think the testimony in this case was exceedingly long, it ran through many, many pages which is probably why it -- it wasn't printed here. The hearings themselves took days and days but the order of the Board was out in a little over a month from the time the complaint was filed. If I may say, I think hereto, it was suggested in argument that the Supreme Court of the State of Wisconsin commented that by the time the case got to it, the questions relating to employer conduct were not pertinent and the reason it said so, why is because the appellants did not chose to bring them in issue in this case. As I have demonstrated by -- the case I have quite quoted to the Court, the Appleton Chair case, any conduct amounting to an unfair practice could have been alleged as a counter complaint and could have been considered by the Board if appellant said he'd like you to do so but if they -- they preferred to take it to some other agency, obviously there's nothing that the State can do to any excess of its jurisdiction and it should not be criticized for not deciding something that was not brought before it.
Felix Frankfurter: Am I right in drawing inference from what you've said that no injunction affecting a labor controversy, which I've take it is the (Inaudible) can be entered by a Wisconsin court on -- except as a condition upon a finding by your Labor Board or whatever (Voice Overlap) --
Beatrice Lampert: No -- no, that's not true. There -- there --
Felix Frankfurter: (Voice Overlap) --
Beatrice Lampert: -- still can be -- there still can be injunctive suits under the same restrictions as are applicable under the Norris-LaGuardia Act.However, the -- the procedure here applied is additional.
Felix Frankfurter: But this -- could an injunction -- could avail for an injunction that have been filed in this case to restrain alleged violent conduct?
Beatrice Lampert: I believe it could. I think I might say that one of the reasons perhaps why it was not is -- I will go into a little later. The two general reasons why the people ordinarily go to our administrative agency is that it is faster and that it is a little farther away from the scenes. You would have to apply for your -- to -- for your injunction in a local court. Very frequently, their court -- the judges have some interest that impels them to disqualify themselves and it is sometimes slow, particularly if we have to get in an outside judge.But that procedure is still available if one elects to pursue it. Now, then up to that stage, we've had two proceedings and we've had a proceeding before the Board and proceeding before the Court to tell people what is proper conduct not impinging upon the public interest in this case and there has been no penalty or no possibility of penalty and that isn't such a case as this. The third step before we can have any penalty or at least in practice before we have had any penalty involves a civil contempt proceeding. That is a full court, full desk court proceeding, with the Board restricted by exactly the same rules that apply to any other -- a hold or other judgment in a civil action. It must file its pleadings which must be verified affidavits. It must give notice. There must be a full trial before a court record, only then, if the Court finds that after these previous two steps have been taken, can anybody be penalized. At least in practice, that is the way in which all these cases which we have cited in our briefs have come to the courts and up to this Court. Under our civil contempt statutes, aside from the payment of damages to injured parties, the limit, the absolute outside limit of any penalty which could be imposed for violation of this judgment is $250 in fine or six months in jail. And I assure you, we do not exercise even that small sanction indiscriminately. For many, many years, I am the only counsel the State Board has had. It develops upon me to conduct these contempt proceedings and they are arduous, we don't do them except as a last resort. So there have been very few people actually penalized under this procedure. The idea is to let them know what they can and cannot do and a great majority of people want to do what they should when they know. So that is the procedure upon we -- which we have come up here. Now, the factual background, I think it's a little bit important in determining why we can't just simply rely on arrests and imprisonment. This dispute occurred in a village of less than 2000 population. Many of the employees of the company involved come from other communities so that the number of striking employees exceeded the total population of the village. They were aided by affiliates and of persons assigned to assist from other places and by sympathizers in the area. So that the number of persons engaged in mass picketing exceeded the total number of residents in the village -- I mean exceeded in engaging in picketing activities. I think it can be taken as common knowledge that in a village of that size, there is not more than a handful of policemen who are not trained for mob control. Their average duty will probably be at the most making an arrest of a single citizen at a time for -- I don't -- bringing -- (Inaudible) at a neighbor's guard. They -- I expected them under the criminal procedure to go out among these 2000 people and put in enough people and arrest them and go start the wheels of the criminal procedure running to keep the matter under control. Well, not only, even if they could do that, there are still further difficulties. A small community involves almost always, at least a dozen in Wisconsin certainly elected enforcement officials including prosecuting attorneys and judges. In that community, where a large dispute of this nature is going on, everybody has an opinion, everybody is concerned. Drawing a jury which has no opinion on an unsolved case, for instance, would take weeks. A prosecuting attorney who is too zealous may be unable to finish his cases because an election intervenes. A judge and that is a matter of record in this case that the judge, even the one who had to hear the Board's petition for enforcement which was solely reviewed, disqualified himself because he had been criticized before sitting on an assault case, when he had stock in a grocery store or interested in a grocery store where some of the strikers were trading. Those things make it a practical problem in most communities to try to control by this criminal procedure which goes on for months and months and months when the courts are crowded. If we had 2000 people participating and tried them each individually and do a criminal process, the strike would long, long, long be over before anybody would be brought to test. The -- and I have -- I have, I think, explained why the -- the State has offered this additional method into the common law method of injunction on basis of the private party. I think, possibly, this is one of the cases in which the administrative procedure before the Board was simply for the private party than finding a judge who would be willing to sit in a private injunction suit. Now, secondly, that -- that is the legislative process which has tried to find a practical solution to what it deems to be of duty not of privilege. Secondly, the Board has made an honest effort in this case to abstain from the area which it understands that from the decisions of this Court have been preempted. As -- we will show and I'm bringing -- about to show, I think, now that there is actually no duplication of any function which can be exercised by the National Labor Relations Board. But I -- I -- in doing so, I don't want to be understood as indicating that the action would be improper if there were duplication. The legislative records we have quoted have said expressly that in these extreme cases and surely, violence is an extreme case, then there's no objection that there is duplication. Counsel did suggest in his -- in its reply brief that there is, and I quote, “A dearth of references to state labor laws except in connection with 10 (a) and 14 (b)." Well, now, we could have quoted many more than we did but we quoted at least four in our brief. One appears on page 8 which -- in which Representative Kristen of Wisconsin questioned Mr. Hartley and said, “Now, does this law -- and this was not in connection with 10 (a) or 14 (b), said, "Does this law leave as much as it's possible to States?" Leave it to them to settle disputes at the state level and -- and Kristen -- and he spoke expressly of the Wisconsin law, the very law that is here before the Court. And Mr. Taft and Mr. Hartley said, “Yes, that's the intention of this law, the law as a whole.” On page 8 -- or on page 10, Mr. -- I think it was Senator Ball who made reference to the Allis-Chalmers strike as being one of the types of things that -- where there was state control. The activities in the Allis-Chalmers strike have -- it was a year or two before that were very, very similar to this case excepting on a greater scale. And Senator Ball told the Congress at that time that those things that were -- were controlled by state law and by state law he could have meant only the law that was involved in the Allis-Chalmers case which came to this Court on petition for certiorari and which certiorari was denied, the identical law. And he referred -- it is suggested that when he referred to peace officers, he wasn't referring to labor boards but to a larger extent. I, counsel for the Labor Board, consider myself a peace officer of the Labor Board. The traffic policeman, all those who have other duties are also peace officer, every law enforcement officer is in essence fundamentally a peace officer. That is the very basic part of our governmental protection which the citizens expect. We start with that on the assumption and then go on to the more specialized duties. Then at page 11 of our brief, we've -- we have quoted, Senator Wiley's reference to Wisconsin and other states labor boards. And at page 17, we've -- we've quoted in a footnote Senator Taft's actual quotation to Congress of the very section of the Wisconsin law which is primarily here involved. So certainly, when they were talking about and there are many others which we didn't have time or space to quote of course, but when they were talking about continuing state jurisdiction and at the same time talking about these very laws, surely, had they meant to exempt regulation by this type of law, they would have made it clearer in their arguments or in the wording of the law. Now, I wish, however, to go ahead now and try to demonstrate the point that I referred to earlier that the Board tried to apply only those portions of the Wisconsin law which do not involve infringement on an area which this Court has held has been preempted. This Court recognized in the Allen-Bradley case which has been many times cited that the part of the state law which will be considered for purposes of validity is only that part which is applied in the specific case. That we -- we concede that there are other parts of the Wisconsin law including one almost comparable to Section 8 (b) (1) which is the basis of the claim of conflict in this case but they have not been applied here. So our question as to validity of the state action depends only on the action itself, the findings and the specific provisions of law under which they are authorized. Now, counsel objected yesterday to our reference to the fact that Wisconsin law is not concerned solely with employer-employee relations. It makes it an unfair practice for any person to engage in the kind of conduct defining that the law is unfair and counsel said that we did not apply that provision in this case but we did. The greatest, thus far, the greatest number of persons who are restrained by this judgment are members of the union, 2000 or so at least. We couldn't possibly have included them in this proscription had it not been for this provision because we did not attempt to decide on anybody's employee status. We have -- it was suggested that the Wisconsin Employment Peace Act regulates only labor relations. It does, of course, regulate labor relations. But in addition, the legislature has said it also regulates the relations between third parties and the public and those participants in the labor dispute who may go out and infringe on third party's rights. I find that in our Section 111.02 -- no, 111.01 subparagraph (2) of the Wisconsin statute which is quoted at pages 56 to 57 of our brief has been there wrongly cited. The -- the proper citation is 111.01 (2). The legislature said there, "It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations whatever those may be and disregarding them, they should not be permitted in the conduct of their controversy regarding employment relations to intrude directly into the primary rights of third parties to earn a livelihood, transact business and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, restrain or coercion."
Felix Frankfurter: With the reference there, the third party, referred to of course is a --
Beatrice Lampert: Might be --
Felix Frankfurter: -- of non -- of non-union employees to resort to the Union Act --
Beatrice Lampert: Not --
Felix Frankfurter: -- is that right?
Beatrice Lampert: Not only those, it might be a truck driver who wants to get in and deliver some employer's goods or somebody who wants to call to sell some goods to the company or anybody who might want to --
Felix Frankfurter: But although you're in the circle (Voice Overlap) --
Beatrice Lampert: That's right.
Felix Frankfurter: -- in this circle there's got to be a relation, isn't it?
Beatrice Lampert: Well --
Felix Frankfurter: This statute doesn't deal with a -- with a total outsider who happens to be sympathizing and (Inaudible) would he come within this?
Beatrice Lampert: Yes, he could because the -- the Board did not find any such outsiders in this case --
Felix Frankfurter: (Voice Overlap) --
Beatrice Lampert: -- but they -- they have in other cases because this subsection 111.06 (3) makes it an unfair practice for any person even if we had absolutely -- if -- even if he were just a saboteur say and had absolutely no connection with the dispute. If he comes in and tries to stir up a riot, he is subject to the --
Felix Frankfurter: Having specific acts which were enjoined here, the actual conduct which was enjoined, could that be dealt with by Wisconsin law had you know -- had you not this statute?
Beatrice Lampert: That would -- not that I know of, no.
Felix Frankfurter: Pardon me?
Beatrice Lampert: Not that I know of. The only thing that I could think of that might possibly be involved under our criminal law would be our peaceful assemblage -- unlawful assemblage.
Felix Frankfurter: Was there any -- was there any violence here? Any --
Beatrice Lampert: Oh, yes. Yes --
Felix Frankfurter: -- battery?
Beatrice Lampert: Yes, indeed.
Felix Frankfurter: Assault and battery?
Beatrice Lampert: Yes.
Felix Frankfurter: Well, haven't got a statute of Wisconsin that outlaws (Voice Overlap) --
Beatrice Lampert: Yes, that would cover the -- the few people that engaged in that. Now, if there were 2000 people picketing, perhaps not more than 50 engaged in assault and battery who could be arrested but they were -- at the same time the people there were in the mood so that all they needed was a little stirring up and there would -- might have been a great many more.
Felix Frankfurter: Then -- then there was -- there were two types of conduct, actual ordinary violence plus mass picketing which is condemned by your statute as being a form of perjury that your part of the outlaw, is that it?
Beatrice Lampert: That's right. And there was actual assemblage in the streets that -- whether it was mass picketing or otherwise, that assemblage in the streets in connection with this kind of a dispute is an unfair practice if --
Felix Frankfurter: (Voice Overlap) --
Beatrice Lampert: -- it interferes with traffic.
Felix Frankfurter: What I want to know is whether such an assemblage couldn't be dealt with if it was an assemblage by people who were not involved in an industrial controversy or involved in -- in not liking some visitor to be --
Beatrice Lampert: I'm sure it could.
Felix Frankfurter: And that would (Inaudible)
Beatrice Lampert: Yes, I'm sure it could. It could not be dealt with as effectually perhaps as by this procedure but you could -- you could send down if you had enough traffic policemen, enough to disperse the groups. I think, perhaps, it could be dealt with under the traffic law say but that of course takes a personnel --
Felix Frankfurter: Ms. Lampert, that's a different question, namely, that's a question of choice of remedy or misconduct which --
Beatrice Lampert: That's right.
Felix Frankfurter: -- may -- may deal with -- which the State has -- they're not here to pass on the choice of remedy to open (Voice Overlap) --
Beatrice Lampert: Yes, sir, I think that's true. I think --
Felix Frankfurter: So that's beside the point whether it's (Inaudible) at one way or the other if the State has power to deal with it.
Beatrice Lampert: That's right. All -- the State unquestionably has power to deal with this. I'm -- I'm talking about expediency now, perhaps a different thing than power. I'm sorry, I didn't -- there's no --
Felix Frankfurter: Completely concrete but it doesn't deal with the question of (Inaudible)
Beatrice Lampert: That's right. We're trying --
Felix Frankfurter: -- consideration.
Beatrice Lampert: That's right. But we -- I was explaining that we're trying to deal with all these in one, yes, we would have power to deal with everything that happened in this case. There were hundreds of violations of criminal law and there's a violation of traffic law, hundreds of infringements on rights of other people. We could have dealt with all those separately of course. There could have been hundreds of those and there's no question of our authority to do it. As I understand, counsel hasn't conceded that but it's simply is not practical or effectual to do it that way. So, we have done it and if we've got power to do it, surely, and have the duty to do it, the power, we don't care about. If somebody else wants to assume the duty with the power they can have it.
Speaker: Who --
Beatrice Lampert: But if we've got the duty to do it, we've surely got the -- the power to do it the most effectual day.
Felix Frankfurter: Well, if you haven't the power, then you haven't got the duty.
Beatrice Lampert: That's right.
Speaker: How is this proceeding initiated?
Beatrice Lampert: It was initiated by a complaint before the Wisconsin Employment Relations Board by the Kohler Company.
Speaker: The Kohler Company initiated it?
Beatrice Lampert: That's right. The procedure -- but to that extent, it is analogous to the application for an injunction in -- in courts of equity. It has -- the proceeding has to be initiated by some party in interest. It could have been initiated by any --
Speaker: The Kohler Company?
Beatrice Lampert: -- person whose rights were infringed. Was that all of that question, Your Honor? Right now --
Stanley Reed: The Kohler Company charged that it was such an interference with ingress and egress --
Beatrice Lampert: That's right.
Stanley Reed: -- that their customers or their employees could not pass the reliance.
Beatrice Lampert: That's right and even applicants for jobs -- oh, in that -- in that connection, I -- I think perhaps I should infringe a lower of my colleagues time to explain how the Board tried to stay away from deciding questions that remain to be decided by the National Labor Relations Board. They tried to preserve the situation so that when the National Board decides the questions before it, which have been pending for years, there will be something on which the National Board's decision can operate. But in -- in trying to preserve that, the Board very carefully tried to refrain and -- and not -- and honestly, it tried to avoid any -- any area which they didn't have the right to go into. This -- the State Board has many times dismissed cases on grounds of lack of jurisdiction and the state court has done so. Of course, the state court had -- felt it had jurisdiction until this Court decided differently in several cases. It has -- for instance, in cases similar to the Garner situation, it has believed that the State had jurisdiction until the Garner decision. But after the Garner decision, it immediately dismissed any matters involving many peaceful picketing on the grounds of illegal objective. Here, however, there are two provisions of the State Board's order that are absolutely unconnected with any employer-employee relations. Everybody involved in this case is proscribed from obstructing or interfering in anyway with ingress to or egress from the Kohler (obstructing or interfering with the free and uninterrupted use of public roads, streets, highways, railways or private drives leading to the premises of the Kohler Company). The -- that -- there is added to that a limitation of the number of pickets. The Board has said that when you go over 200 pickets in that area, in that village, you're mass picketing. You can -- you can go up to 200 pickets without violating this order, 25 at any one gate. That certainly is enough to advertise a labor dispute. That -- those -- those matters are quite irrespective of whether the -- the picketing, the obstruction is engaged in for the purpose of coercing employees and their right or whether it is engaged in for the purpose of -- of merely keeping people out, business out or whether it's out for the purpose of keeping visitors out for any reason. That -- that is proscribed because of the public interest and the interest of the third parties which has been pronounced by the legislature there. And the National Labor Relations Board itself has recognized that it has no authority and -- and will not try to proscribe mass picketing as such. It says -- it said in the Corey Corporation case signed and cited in the brief that it had no authority to affirmatively regulate the number of persons who may probably picket an establishment, it's -- and said then that is primarily a matter for local authorities. All right, now, another part, the other part of the Board's order, Sections 1 and 2 of the proscription are the ones, I believe, on which counsel primarily relies in his suggestion that there has been an infringement of preempted area. The Board, however, referring thereto for making any decision as to who were or who were not entitled to protections as employees. As I pointed out, the state law does have a parallel provisions, Section 8 (b) (1) which proscribes or makes it an unfair practice to coerce employees in their enjoinment of their legal rights guaranteed by -- in this federal law at Section 7 and the state law at section 111.04 (4) I think it is. The Board may absolutely no reference to that Section. It did not refer to employees nor did it -- it proscribed coercion of employees in their rights as employees. It referred to the Section -- the portion of that Section of the law which does proscribe coercion by picketing domiciles and that's the only part of that provision of the law which paralleled the federal law which was referred to by the State Board. And that matter, a picketing of domiciles per se is not covered by the federal law. Now, the State Board in its order proscribed not coercion of employees but coercion of persons desiring to be employed by the Kohler Company. And now, the first reason they did that was a recognition undoubtedly that if any disciplinary action were exerted by the employer, it would be for the National Labor Relations Board to -- to decide whether these people were or were not employees, so the Board -- State Board hasn't tried on that face of the matter at all. Secondly, it -- it made it clear, though there are many people who wanted to apply for jobs that were not -- couldn't, under any circumstances, be considered employees who couldn't even get in to file their applications. So, the Board said, “You shan't coerce a person desiring to be employed." And then it says, “You shan't coerce them with respect to legal rights," not the legal rights guaranteed under Section 111.04 or the legal rights guaranteed by Section 7 of the federal law. There has been no reference to that and that's a very significant omission. The Board is distinguishing and -- and prohibiting the infringement upon people's right to be free in using the streets going where they please from attack, from obstruction and that sort of thing.
Sherman Minton: Kohler Company were engaged wholly in interstate commerce?
Beatrice Lampert: I beg your pardon?
Sherman Minton: Kohler Company were engaged -- this is wholly an interstate transaction.
Beatrice Lampert: No, this -- there was no --
Sherman Minton: Well, not wholly but it was enough to (Voice Overlap) --
Beatrice Lampert: It affected. Yes, it affected (Voice Overlap) --
Sherman Minton: And certainly -- certainly I think --
Beatrice Lampert: Yes. No question.
Sherman Minton: -- it was clearly within the -- the National Labor Relations Act.
Beatrice Lampert: That's right.
Sherman Minton: Well, what right has the Wisconsin in that field? What power has the Wisconsin in that field?
Beatrice Lampert: Well, we feel that we have the reserve power that that is an area in which Congress has definitely, in all these statements that we have quoted and many, many more, said is left to state because it is the State as the unit which is -- which is primarily charged with maintaining peace and good order in their own communities. This is not an area where -- where there is interstate commerce. Every bit of this activity took place in one small community area in Wisconsin. It was all intrastate business that was involved. The reason that Congress has legislated with respect to such countries -- companies as Kohler is not because they are engaged in interstate commerce but because they do send their goods in interstate commerce and business affects commerce. But they live in -- in regulating the commerce aspect, the regulation of the local aspect where the companies do business to the community primarily concerned and to the only the community which can step in immediately and prevent mob violence. Congress didn't intend to undertake that responsibility in the federal law unless the State and local governments fail. That was said again and again and again in the debates. If the --
Stanley Reed: Are you referring to Section 10 now of the --
Beatrice Lampert: No, no. This is -- I have not discussed Section 10 (a) at all. These debates that we have quoted and the ones that we have referred to are all with respect to the law in general. Section 10 (a) was not intended in anyway to restrict state rights beyond what they had been restricted before. That was intended to increase state rights in cases where there was actual preemption, but it did not intend to infer or to imply that there would be preemption. It simply meant that where there had been preemption and still in certain cases, the -- the N. L. R. B. could authorize states to act. But where they had been no preemption, of course, there's no need any authority in the part of the N. L. R. B. to authorize states to do something that they had reserved power to do anyway.
Harold Burton: As I understand you, you take the position that on the questions of law and order and peaceful control of conditions, you are right to exactly the same whether it's -- if they're affecting the interstate commerce or not.
Beatrice Lampert: Yes, Your Honor. I assume that there would be one limitation to that, we could not act even with respect to peace and good order in such a manner as to deprive anybody of what rights guaranteed by the federal law nor could we act in such a manner as to conflict or as to authorize anything prohibited by the federal law.
Sherman Minton: You have a right to enforce your criminal law but would you have the right to come in and enforce labor relations law in order to reach the criminal aspect?
Beatrice Lampert: Well, we -- we feel that in this case we have not enforced a labor relations law, we have reinforced only that part of the labor relations law which deals with debates of third party.
Sherman Minton: Well, if you were enforcing the criminal law, they'd be entitled to a jury, wouldn't he?
Beatrice Lampert: Yes -- yes, they would. Each individual would've been entitled to a jury for trial and trial under the criminal law. He would also be subject to penalty. We see we don't have a penalty here at all. If we could handle it by means of putting 2000 people in jail, it seems to us that it's infinitely preferable and surely Congress intended that we should be able to handle it by some means avoiding putting 2000 people in jail and letting them know in advance what -- exactly what things they cannot do, the -- exactly the same things that is disagreed -- agreed by everybody are unlawful per se, things that the -- the National Labor Relations Board could not authorize, things that the National Labor Relations Board could not prohibit per se, things that the National Labor Relations Board could reach only indirectly and only partially. The Board has said itself that it could not prohibit mass picketing as such. All it can do is say, “We prohibit you from interfering with the rights of the Kohler Company employees by mass picketing.” Well, that is -- is far, far short of clearing our streets so the people can get through. The National Labor Relations Board, incidentally, has always in all the previous cases I have been before this Court has appeared to -- in support of its own jurisdiction and to oppose a jurisdiction. I think it is significant that it is not doing so in this case. It is elected not to appear. When it believes --
Hugo L. Black: It elected not to appear?
Beatrice Lampert: Yes.
Hugo L. Black: Is that -- is in the record?
Beatrice Lampert: I don't believe it's in the record. Counsel for the appellant, I believe, solicited their appearance and they -- I have had a copy of a letter from the National Board to direct -- address the counsel saying they elected not to appear, not to file a brief as a friend of the Court.
Felix Frankfurter: But anyhow they're not here, that's --
Beatrice Lampert: They're not here.
Felix Frankfurter: We will not argue about that.
Beatrice Lampert: And it -- it seems to me that's significant in view of the history of labor legislation -- labor litigation before this Court in all previous cases which I have had the duty to argue, the National Board has appeared. And in the -- and in some cases where a State has proceeded to act, the National Board has appeared as a litigant as in the Capital Service case. They know if -- how to protect their interest if they feel they are being infringed. I believe that the fact that they are not here in this case indicates that this is one they believe is covered by the statement made by Chairman Herzog before the congressional committee indicating that they believe this to be appropriate area for state jurisdiction.
Hugo L. Black: But if we were to go on that, I should think it would be wise for us to ask him for what he probably presented their brief in here in view of making that as an argument, I take it. That would be better for us getting directly from the Board rather than by (Inaudible)
Beatrice Lampert: Satisfactory with the -- us certainly.
Hugo L. Black: Might be a wise value.
Beatrice Lampert: That's right. I have only one --
Felix Frankfurter: Where is that -- the reference with Chairman Herzog's testimony, Mrs. Lampert? In the colloquy between the Wisconsin Congressman and Mr. Hartley are so general --
Beatrice Lampert: I -- I think the testimony of Chairman Herzog is referred to on page 70 of the brief and at the bottom it said, “This statement continues to represent the Board's present views." That was in 1953. Of course, it's very possible, the views may have changed, but I -- I mean that it seems to me that that statement taken with the fact that the Board has not seen fit to try to stay these proceedings would indicate that that -- that statement applies in this situation. I had wished to discuss the Briggs-Stratton case a little more detail, but I would like to leave a little time for my colleague.
Earl Warren: Mr. Powell.
Jerome Powell: May it please the Court. As Mrs. Lampert has already suggested, we feel quite strongly that the legislative history of Section 8 (b) (1) (A) of the National Labor Relations Act, the Section on which the claim of federal preemption here is based, demonstrates quite clearly that Congress expressly intended to preserve state remedies against the sort of violent conduct which is revealed by this record.
Felix Frankfurter: It's interesting if you allow me to interpolate -- presented to reserve some state remedy, except that the whole problem is what they are.
Jerome Powell: Yes, Your Honor, we concede that. We concede that.
Felix Frankfurter: And that's the whole problem, isn't it?
Jerome Powell: It is, Your Honor. And we recognize, of course, the possibility that Your Honors may not feel that the legislative history is conclusive as to whether this particular state power was in fact intended by Congress to be preserved and that having not found a conclusive answer to that in legislative history, you may have to look elsewhere. And as we read this Court's prior decisions in this field of preemption as applied to labor relations, we understand that the principal basis on which state legislation has previously been stricken down has been a finding of conflict between the state regulation and the federal policy as disclosed in the National Labor Relations Act. We think it's demonstrable here that there is not a conflict between the state regulation and that there is no potential conflict so long as state regulation is confined to the area of violent and coercive union conduct. To demonstrate the absence of actual conflict here, we have to go in part at least to the proceeding which is currently pending before the National Labor Relations Board because Congress -- because, I should say, the appellant has based its principal claim of actual conflict on those proceedings even though they are not a matter of record before this Court. Pleadings that have been put into appellant's appendix show this in regard to that proceeding which is currently going on before the National Labor Relations Board. The union has filed a charge and the Board has issued a complaint that the company, the Kohler Company, has refused to bargain in good faith with the union. As one of the -- of the defenses pleaded in our answer, we set up the fact that the union had engaged in a violent and coercive course of conduct, the same that was pleaded in this Wisconsin case. And that as a result of that course of conduct on the part of the union, we were relieved of the duty to bargain with the union during the period while that conduct was going on. We put in evidence to support that defense that is we have attempted to prove to the Board that the union did in fact engage in this violent conduct. We say, Your Honors, that there is no possibility of conflict in that situation for this simple reason. Nothing that Wisconsin has done can possibly interfere with any action that the Board may take on our proof of that defense. If the National Labor Relations Board concludes that in fact the union's conduct was unlawful, it will then come to the legal question of whether that unlawful conduct was a sufficient excuse for our declining to bargain during the period while the unlawful conduct continued.
Stanley Reed: What -- what section of the Act was your basis for defense?
Jerome Powell: We don't base it directly on any section of the Act, Your Honor. We take the position that the Act does not -- that it will not enforce or -- or it will not express the basic policies of the Act to compel an employer to bargain directly with the union who is -- which is engaged in a concerted campaign of unlawful conduct. And mind you, Your Honors, this did not extend over any great period of time. It was just a period between the time when we filed our complaint with the Wisconsin Board and the time when the Wisconsin Board issued this order. Assuming for the moment that the National Labor Relations Board might find that this conduct which we have now attempted to prove before that Board is not or was not unlawful, there would still be no conflict between what the State has done and what the National Labor Relations Board might do because Wisconsin has done nothing in prohibiting this conduct which the National Labor Relations Board is empowered to prevent -- I mean to protect. There is no potentiality of conflict so long as Wisconsin's regulation stop short of an invasion of those Section 7 rights which the Congress has declared shall be protected. And here Wisconsin has stopped short.
Sherman Minton: (Inaudible)
Jerome Powell: No, Your Honor, we don't contend that. Although, Wisconsin's regulation, of course, can only apply intrastate but we say that Wisconsin in the exercise of its powers which Congress we believe has not displaced, has power to preserve the peace here.
Felix Frankfurter: Well, I'm not sure -- I'm not sure I follow you and your statement doesn't fall in Justice Minton's question. If the Board found that this was lawful conduct, then why isn't that a collective activity protected by Section 7?
Jerome Powell: Because Wisconsin's regulation has not interfered with the -- with any activity which is protected. In other words, Your Honors --
Felix Frankfurter: What you say the injunction following the determination of your Board relates only to conduct to which --
Jerome Powell: Lies that's --
Felix Frankfurter: -- which is deemed to be lawful and therefore within the protection of Section 7, is that your point?
Jerome Powell: Definitely. I think so, Your Honor. My point is that Wisconsin's injunction prohibits nothing which is protected by Section 7. It prohibits house picketing. It prohibits picketing in numbers in excess of 250 at one time. It prohibits blocking of streets and highways. None of those activities can conceivably come within the protection of Section 7 of the National Labor Relations Act in view of this Court's prior decision in the Allen-Bradley case. So, there is no possibility even if the National Labor Relations Board should determine that this conduct was not in fact unlawful, there is no possibility that the Wisconsin prohibition can have interfered with the exercise of rights guaranteed by Section 7.
Felix Frankfurter: There may be conflict in determining whether or not there was a mass picketing?
Jerome Powell: There may be, Your Honors.
Felix Frankfurter: In other words, Wisconsin may have found there were 200 and the Labor Board may find there were only five.
Jerome Powell: Yes, that is a possibility. I might say this as to that. That possibility existed equally when Allen-Bradley was decided. In other words, to the extent that one might say that there is some potential difference of the basis of finding in the case. That was equally true in 1942. It has not arisen because of the enactment of the Taft-Hartley Act.
Felix Frankfurter: And Section 7 then allows that certain activity because that --
Jerome Powell: Yes, Your Honor.
Felix Frankfurter: -- based from the original Act, doesn't it?
Jerome Powell: Exactly, Your Honor. There has been no amendment of Section 7. And it seems to us that in order to make out a case which does not fall within the Allen-Bradley rule, appellant here must show some reason why the state action now conflicts with federal regulation because of the enactment of the Taft-Hartley Act.
Hugo L. Black: Do you think the Allen-Bradley case has remained in full force, in effect comes the Taft-Hartley Act?
Jerome Powell: Yes, Your Honor. With respect to violence and coercion, we do believe so.
Hugo L. Black: Do you say with respect to violence?
Jerome Powell: With respect to violence and coercion.
Hugo L. Black: That rested on the idea that the Labor Board at that time didn't have such -- certain powers?
Jerome Powell: Yes, Your Honor, it did.
Hugo L. Black: And what about to the extent that the Taft-Hartley Act has increased the powers of the Board? What do you say about the (Inaudible) the case?
Jerome Powell: We still think that it was not the intention of Congress to displace state regulation of violence and coercion.
Hugo L. Black: Well, I understand about violence and coercion of where they have -- where they have power. Let's -- let's get away from the violence and coercion in a moment, on the argument you make.
Jerome Powell: Yes, Your Honor.
Hugo L. Black: Do you think that the fact that the Congress has given the Labor Board greater power that it has before it to restrain certain conduct has altered in effect with the Allen-Bradley infringement on the power of the State with the same theory.
Jerome Powell: Yes, Your Honor. I think it has -- I think it has. That is in field lying outside the area of violence and coercion.
Hugo L. Black: But does -- does the Act hasn't -- has been changed and give the Labor Board power to restrain that too?
Jerome Powell: It does not as such, Your Honor. What the Act as amended permits the Board to do is to eliminate certain effects of violent and coercive conduct. The Act as amended provides that it -- this is Section 8 (b) (1) (A) on which the claim of preemption here is founded. The Act provides that it shall be an unfair labor practice for a labor organization or its agents to coerce or restrain employees in the exercise of rights guaranteed by Section 7. Now, Your Honors will observe from that, that the Act does not prohibit any specific conduct. It prohibits only the effect of conduct on employees as such.So that when the Labor Board issues an order under Section 8 (b) (1), it does not prohibit a labor organization or its agent from doing anything. It only says, “In doing whatever you may do, you shall not invade the rights of employees guaranteed by Section 7.” And the result, of course, of that very limited regulatory power in the Board is to leave the conduct itself unaffected.
Kurt L. Hanslowe: If the Court please.
Earl Warren: Mr. Hanslowe.
Kurt L. Hanslowe: Counsel for the Kohler Company and counsel for the Wisconsin Board have suggested that the order in this case and the Wisconsin statute enable the Wisconsin Board to prohibit any person rather than an employee acting individually or in concert from committing unfair labor practices. It is true that there is such a section in the Wisconsin statute. That is the Wisconsin statute contains prohibitions against employers, prohibitions against employees and prohibitions against any person. That Section which contains that prohibition against any person is Section 111.63. It was not invoked in this case. The Wisconsin Board's findings are based on Section 111.6 (2) which is the Section that directs itself towards employees acting individually and in concert. And two of the respondents in the Wisconsin proceeding were labor organizations, a number of other respondents were agents of labor organizations. And to that extent at least, the Wisconsin -- the Wisconsin regulation duplicates the kind of regulation which the federal board could have engaged upon in this case.
Felix Frankfurter: Do you think it makes a difference what specific provision a state agency professes, base an order on if the state law avows from this other sections such an order. I take it, the rule of federal court that an indictment is labored by a particular statute and it isn't valid under that statute, it doesn't make any difference if it's trailed in other -- some other statute. Now, what difference does it make from the point of view of power in cases here that exercise of authority by the state?
Kurt L. Hanslowe: Yes, sir.
Felix Frankfurter: What difference does it make whether the Board decided one section or another section if it has some power under some section to do what it did?
Kurt L. Hanslowe: Well, I believe that reference to the appropriate section suggests in the first instance what Wisconsin in this case thought it was actually doing.
Felix Frankfurter: Well, we go to the decree and see what it did, not worry about what it thought. They enjoined certain things and no amount of label or no amount of characterizations can make it more or less (Inaudible)
Kurt L. Hanslowe: But the order, Your Honor, is directed -- the findings and the order are directed towards labor organizations and their agents.
Felix Frankfurter: But I have before me a judgment (Inaudible) the Circuit Court?
Kurt L. Hanslowe: It's the Circuit Court.
Felix Frankfurter: I have before me the decree of the Circuit Court which is in -- was affirmed the decree of the Supreme Court that specifically enjoined certain conduct and why do we have to go beyond the terms of that injunction that restrain and not the -- and decide where the flow of restrain, you restrain a conduct which is still there in the State of Wisconsin to restrain and not bother about the particular labor it hasted on the form.
Kurt L. Hanslowe: I will merely respond by noting that the decree of the Circuit Court too is directed not towards any third person, it is directed towards labor organizations and their agents and that therefore the exercise of power as Your Honor puts it duplicates the kind of regulation which the federal board could engage upon.
Felix Frankfurter: I understand that now. I follow that.
Speaker: Mr. Hanslowe, is there any claim here by the union that this was not a bonafide attempt on Wisconsin's part to exercise its police power?
Kurt L. Hanslowe: I --
Speaker: Is there a claim here that there was -- this was simply a subterfuge for Wisconsin going in and trying to interfere with the Board's jurisdiction on the purely labor relations aspect of this --
Kurt L. Hanslowe: I -- I would say that this case does represent an attempted exercise by Wisconsin of its police power. But as I understand a police power of a State, it is not an irreducible absolute. It is not a power which -- which can -- any -- any state regulation that is legislative for the --
Speaker: No, let me --
Kurt L. Hanslowe: -- public --
Speaker: -- let me make my question more specific. Do you claim that the Board, the Wisconsin Board, was lending itself to an attempt of the Kohler Company to have its dispute with the union adjudicated in a state jurisdiction rather than the -- the Board?
Kurt L. Hanslowe: Certainly, that is the case. The Kohler Company could have filed charges substantially similar to those filed in the state complaint before the federal board and could have had them heard there. There's no question that the federal board would have had jurisdiction over them. Wisconsin -- the Kohler Company elected to take its complaint before the Wisconsin Board and in that sense, the -- the Kohler Company, of course, is in the position of shopping for its form which we are not. And the counsel for Kohler Company demonstrated in this connection that the issues in this dispute are interrelated because they are -- have finding it necessary to plead some of the same things that were pleaded before the state board before the federal board. And as I argued yesterday, we were unable to do this. In other words, we have claimed that the Kohler Company has engaged in course of conduct of various kinds. We attempted to defend in the state proceeding on that basis. We were told by the Supreme Court of Wisconsin and I read from its decision on page 13 of the record, "Appellant's brief asserts that the Kohler Company has in its plant the supply of clubs, guns and tear gas and they submit that it is unjust for the state agencies to restrain the actions of appellants while doing nothing about that. If the appellants considered or do now consider the presence of these munitions wrongful as an unfair labor practice, they could and still can petition the Board for its abatement." Well, the fact of the matter is that we could not do that because as I understand the decisions of the Court, one thing is quite plain, employer unfair labor practices subject to federal regulation as these would be are no longer subject to state board regulation. Therefore, we were unable to have our conduct adjudicated in its context and in its relationship to the company's conduct. And in other -- put another way, the Wisconsin Board, conceding all of this about employer unfair labor practices, is asserting the right to adjudicate certain union unfair labor practices as an exception to the general rule and in isolation in a vacuum unrelated to the other conduct in a complex labor dispute.
Stanley Reed: Mr. Hanslowe, just what is there in the order presented by the Court or by the Board as I understand it here the same that the National Labor Relations Board would have the authority to (Inaudible)
Kurt L. Hanslowe: The order of the Board and of the Court directed the respondent unions and others from forcing and intimidating any person desiring to be employed by the Kohler Company in the enjoyment of his legal rights, intimidating his family, picketing his domicile or injuring the person or property of such person or his employee, hindering or preventing mass picketing. I shall not read the entire order, I will merely quite note that it seems to me specious for the Wisconsin Board to claim that the legal rights of a person desiring to be employed by the Kohler Company are not substantially identical to the rights of an employee under the federal statute to engage in or refrain from engaging in concerted activities.
Stanley Reed: Well, did you -- you say that this might be at least a violation of 8 (b)?
Kurt L. Hanslowe: If the same conduct were proven before the federal board, there is no question that a substantial measure of it would be found to be a violation of Section 8 (b) (1) (A) of the federal statute. Now, we are not saying that the federal board would necessarily have made those same findings, but if they have --
Stanley Reed: They'd have jurisdiction over a -- interference with a non-employee?
Kurt L. Hanslowe: Yes, indeed. We have -- we have cited in our brief a large number of cases where the -- where the -- the federal board has found much if not all of the conduct that was found to be a violation of the Wisconsin statute -- to be a violation of the federal statute. Now, with respect to persons desiring to be employed rather than employees, I would suggest that this Court has held that a person not yet employed but at the point of employment enjoys the statutory rights of employees under the federal Act. And consequently -- consequently, a person wanting to be employed by Kohler Company, whom the Kohler Company wants to employ, would be an employee entitled to the protection of the federal statute. Now, we concede that the federal board would have no jurisdiction over, let us say, customers of the Kohler Company or other business visitors. And indeed, the -- the Wisconsin Board's order may also be directed towards the rights of such people and those -- and -- and such people would not, of course, be able to go to the federal board. But I would note that if the federal board, let us say, were to enjoin mass picketing as they could, if they found that to interfere with employee rights by those same business visitors would derive precisely the same benefit from the federal board order that they derive from the state board order. And I am advised by my associate from Wisconsin that as a matter of fact, the Wisconsin Board does not take complaints from anyone other than employers, employees and labor unions. In other words, people engaged in a labor dispute so that the injured third person couldn't bring his complaint before the Wisconsin Board. Thank you.
Beatrice Lampert: May I be permitted? It seems to me that last statement whether a bit beyond rebuttal as to what the Wisconsin Board does or does not do. I represent the Wisconsin Board. It has never made any ruling that it will not take a complaint from somebody who's not an employee or in (Inaudible).
Earl Warren: Has it ever taken any?
Beatrice Lampert: Yes, it has.
Earl Warren: In how many instances (Voice Overlap) --
Beatrice Lampert: I couldn't. I'm sorry --
Earl Warren: But is it a -- is it a usual thing that --
Beatrice Lampert: No, it is not a usual thing.
Earl Warren: Is it a very rare thing?
Beatrice Lampert: That's a very rare thing. It's a rare thing because the complaints are voluntary. They are not solicited by the Board. They come in -- the Board has no jurisdiction except upon the filing of the complaint and the complaints are usually filed by somebody close to the situation with the most proximate interest.