Earl Warren: Number 166, Marine Engineers Beneficial Association et al., Petitioners, versus Interlake Steamship Company et al. Mr. Pressman.
Lee Pressman: May it please the Court. We are here on a -- an appeal taken from the order of the Minnesota Supreme Court which affirmed an injunction issued by the court below that restrained peaceful picketing on the part of the petitioners involved in this case. The petitioners are the National Marine Engineers Beneficial Association and an affiliated Local 101 both being unincorporated labor unions admitting into membership marine engineers who work on the self-propelled vessels under American flag on the deep sea, Great Lakes, the rivers and the inland harbors. The respondent here or respondents namely two, the Interlake Steamship Company and the Pickands Mather, one is the owner and the other is the operating agent of a fleet of vessels on the Great Lakes. They happened to be the second largest operator of vessels on the Great Lakes. A dispute arose between the petitioners on the one hand and the respondents on the other with respect to the organizing or recognition of the marine engineers of the respondents. It has been found below and there is no dispute that the Marine Engineers of the respondents are what is termed "supervisors" as defined under the National Labor Relations Act. However, as a result of this dispute, the petitioners established a picket line on a date namely November 12, 1959. The picket line was established at the dock of a secondary employer namely the Colorado Fuel and Coal Company or Coal and Fuel Company at which place a vessel of the respondents was then placed unloading its cargo. Also, a picket line was established either the same or the next day at the plant of another secondary employer namely Interlake Iron Company. When the picket line was established at both these places with respect to the first, it has been found below that the employees of the secondary employer refused to work, ceased working and as a result, has been found below, the Colorado Fuel and -- Fuel Company was not able to continue working as it was supposed to on the ship for the respondents.
Earl Warren: Were any of the members the -- were -- of the -- of the union employees of that company?
Lee Pressman: No.
Earl Warren: They were not.
Lee Pressman: The union had no members at the Colorado -- at the Carnegie, I'm sorry, I should have said Carnegie Coal and Fuel Company nor did the union have any members at the Interlake Iron Company. On the picket line, there were no employees of either the secondary employers.
Earl Warren: Were all of the -- all of the employees in this --
Lee Pressman: Actually --
Earl Warren: -- local supervisors?
Lee Pressman: That is the issue which I'd like to come to later, Your Honor.
Earl Warren: Oh, I beg your pardon. I beg your pardon.
Lee Pressman: Before the lower court, a first a restraining order was issued and then after hearing, the restraining order was merged into a temporary injunction and finally into a permanent injunction. Below, in the court below, it was found and the court made its findings to the effect that what I've just recited had occurred namely the picketing at the premises of the secondary employer. And though the petitioners urged that in the face of those facts, activity had been presented which could reasonably or arguably be held to fall within the purview of certain positions of the National Labor Relations Act. That contention was dismissed and the court issued its orders, holding in effect that by virtue of the picketing at the premises of the secondary employer and compelling the secondary employer to cease doing its business, it had the purpose of forcing the respondents to recognize this union and to enter into a collective bargaining contract, the contents of which would have been in violation of Minnesota statutes and Minnesota public policy and the orders were issued. The orders were directed specifically among other things at ceased the picketing and ceasing, having the picketing ceased at the premises of the secondary employer. The simple question that we've submit is involved in this appeal is whether where you have a union which -- as we will demonstrate, is primarily, not exclusively but primarily, composed of what is known as "supervisors" engaging in activity where the dispute is admittedly over a group of employees or workers of the primary employer who are supervisors. But where the activity involves the employees of a secondary employer as in this case is that kind of a situation reasonably or arguably within the purview of a provision of the National Labor Relations Act and therefore preempted for the exclusive jurisdiction of the NLRB. The specfi -- the specific provision of the statute to which we have reference is what is known as Section 8 (b) (4) (A), commonly referred to as the secondary boycott provision. I'd like to pause for a moment and point out that at the time this dispute arose, the provision of the secondary boycott provision was so designated as Section 8 (b) (4) (A). Subsequently, they were amendments to the National Labor Relations Act under what is commonly referred to as the Landrum-Griffin Act in which that provision became what is now known as Section 8 (b) (4) (B). For our purposes, the Amendment did not change the impact of the issue which we are raising. I shall henceforth referred therefore to Section 8 (b) (4) (A) since that was the provision involved in our case. I wish to at this moment, call to the Court's attention the essence of Section 8 (b) (4) (A), the secondary boycott provision which is that where a labor organization, which is one necessary ingredient, induces or encourages the employees of another employer, what I call a secondary employer, to cease their work and the -- for the purpose of having the secondary employer cease his operations or his relationship with the primary employer, that is the essence of the offense under the secondary boycott provision. I don't believe I need emphasize here the framework that has been established by this Court in three outstanding cases as to when do we have preemption in favor of the National Labor Relations Board. We have the Garner versus Teamsters case, the Weber and Anheuser-Busch case and the San Diego versus Garmon case. They established the framework, which we submit for our purposes, has established preemption in our case, namely the simple test is whether the type of activity that has been presented may reasonably or arguably, not necessarily clearly but simply reasonably or arguably indicate that the activity is within the purview of either the permissible or protected activity of the Act or the prohibited activity of the Labor Act that then establishes preemption in favor of the National Labor Relations Board.
William J. Brennan, Jr.: Assuming this is a laborer.
Lee Pressman: Correct Your Honor and I will come to that in the course of my argument. There's been such confusion between the state courts and the National Labor Relations Board in previous cases. I'd like to make clear at this point what we concede because no question about it, namely when there are a group of workers who fall within a definition of "supervisors", they are excluded from the definition set forth of the act of the employees. You have sections in the Act that so provide.
William J. Brennan, Jr.: Mr. Pressman, the symmetric near involvements on the conduct or rather on whether this is a laborer?
Lee Pressman: Your Honor, I've had grave difficulty. I don't think there's any question as to the conduct. My difficulty has been in clarifying frankly in presenting to the courts below what has been held by the National Labor Relations Board.
William J. Brennan, Jr.: Well, my point though is, in assuming a company sworn by the laborer, I can (Inaudible) in assuming you have (Inaudible) and this is the question of whether there's inter labor work.
Lee Pressman: That's correct Your Honor.
William J. Brennan, Jr.: Could the same test apply?
Lee Pressman: For reasonably or arguably you mean? I would submit yes because -- actually, may I say just to the outset, we have here I believe a very situation that I'm sure the Court had in mind in enunciating its Doctrine of Preemption, namely you will find in the case of MEBA versus National Labor Relations Board where the Board has held this very organization to be a labor organization for the purpose of the secondary boycott provision, the Section 8 (b). The Second Circuit upheld that order and stated that and held that MEBA, the very petitioner here, is a labor organization for purpose of Section 8 (b), the test being one that I will come to in a moment. On the other hand, having been so found by the Labor Board and by the federal court, we find ourselves confronted in the state court where the state court says, "We won't permit this issue to go to the National Labor Relations Board. We'll make the determination. And we're holding that you are not a labor organization for the -- within this purview of Section 8 (b)."
William J. Brennan, Jr.: Well, was there evidence taken Mr. Pressman (Voice Overlap)--
Lee Pressman: Your Honor, the record shows the following. The court below made a specific finding that the personnel that we were seeking to organize in this case of the primary employer were supervisors, a specific finding to that effect.
William J. Brennan, Jr.: Was their evidence to support this finding?
Lee Pressman: Yes, there's no question about that that the marine engineers of the petitioner are supervisors. On the other hand, the court merely made in its conclusion of law, a statement that the petitioner is not a labor organization within the purview of the National Labor Relations Act, just a statement of conclusion of law. In the memorandum --
William J. Brennan, Jr.: Now, may -- may I be clear about this, which is to say, there was no testimony taken as to the composition of MEBA.
Lee Pressman: I will state now what we have in the record. In the memorandum of law that a company -- the findings of fact on the restraining order and then was incorporated, this very memorandum law was incorporated in the amended findings of fact and further and finally incorporated by the court's own reference in the ultimate injunction order of a permanent character. The memorandum law has this paragraph, which what we have here in the record, "The record in this case does not show that MEBA Local 101”, which is only one of the petitioners, “admits the membership any supervisory employee and in any event”, that the court went on to say, "it is clear that its membership is composed primarily and almost exclusively of supervisors." The reason the court in that statement did not say exclusively or wholly is because the record also contains a statement of counsel for the petitioners in the court below in which statements have definitely was accepted into the record not as mere argument but as a statement of fact on behalf of the petitioners where counsel said that “most of the engineers are supervisory employees of the membership of the petitioners", using the word "most." In the court below, there was also presented and accepted into the record a case that had been previously decided by the National Labor Relations Board ordering an election of marine engineers in which the organization involved was the predecessor of Local 101 so that the Board in holding that election necessarily was holding that those marine engineers were employees and not supervisors and they had been members of the -- the same organization. That is all we have in the record, Your Honor. Of course in the -- before the lower court, we had before the Court the Labor Board decision in the case involving the MEBA which subsequently became the subject of the order of the Court of Appeals in MEBA versus NLRB. The appellate -- the Supreme Court of Minnesota had Judge Friendly's opinion in NLR -- in MEBA versus NLRB in which there, there was a final decision that this very organization was a labor organization within the purview of the Act. Now, I must confess that I believe that in the court below, both the lower court and the higher court, there was considerable confusion as to the difference between what is involved on the Section 8 (a) and what is involved on the Section 8 (b). For example, in the courts below, we pointed out that we were -- we argue that in our belief we were -- this case was preempted and urged upon the court, a Minnesota Supreme Court case of Norris Green versus SIU. Both courts dismissed that issue claiming that there they said, the employees or the workers of a primary employer were employees. Whereas here they said, the workers of the primary employer are supervisors. Therefore, the case is inevitable, completely in error on that -- on such conclusion. When it came to the issue whether we were or were not a labor organization, I submit Your Honor that the courts below did not go into the issue whether we were a labor organization as interpreted by the NLRB, namely in our very case what the Labor Board has held, that if there are two employees in our organization, only two or more and its oddly immaterial, says the National Labor Relations Board, whether those two are the actually involved in the primary dispute, the courts said immaterial. The fact that we have two workers who are employees, who are our members, makes us a labor organization and if we become involved in a dispute where the primary workers are supervisors but in the course of our dispute, we become involved inducing employees of a secondary employer, we are subjected to the prohibitions of Section 8 (b). The courts below simply refused to accept that proposition.
William J. Brennan, Jr.: Who -- is there anything as to -- about the employees of the secondary employer in this case?
Lee Pressman: Your Honor, in the complaint, the respondents set forth that there were workers of Carnegie Coal and Fuel Company who were working on that ship until the picket line was established and that was -- the picket line was established they ceased working. There was no claim in the court below that those employed workers had any semblance to the question of whether they were supervisors. They were ordinary workers in the sense of being employees under the Act. Now, there is one case again which I submit in the court below has misunderstood, namely the case of Bull Steamship Company versus MEBA. We have been going -- when I say “we”, Your Honor, I mean the petitioners here, we've been going through a labyrinth with the Labor Bard trying to find out where are we under this Act. In the Bull Steamship Company case, which is cited on our brief, you'll find there a question as to what is the situation in under Section 301 (a) of the Act. Where you may recall suits maybe filed for breach of contract between an employer and a labor organization representing employees. Judge Clark writing the opinion in that case, I submit held merely this that to meet the test of that provision, the contract on which suit is brought must cover at least employees. He didn't get to the issue whether we are a labor organization or not. He merely found, as the record disclosed, that clearly enough, the people covered by that specific contract were not employees but supervisors. There was no contest on that issue. Having so found from the record to be the case, he simply held that Section 301 could not cover that contract. He didn't have to reach the issue whether we are a labor organization.
John M. Harlan II: If it were found that MEBA were -- had the Local Board, it was supposed exclusively the supervisors, was that the purview, suppose (Inaudible) nonetheless if labor organization, doesn't mean it was implicated?
Lee Pressman: I don't believe so Your Honor. I believe that it was perfectly clear so that you couldn't even get within the field of reasonably or arguably that there was no ingredient such as a labor organization then you wouldn't be within the purview of Section 8 (b). But I do submit --
John M. Harlan II: (Inaudible)
Lee Pressman: Your Honor that's the test that has been laid down by the National Labor Relations Board. Now, I might -- namely, they say that if there are labor organizations defined as an organization in which employees participate, the Labor Board has held that participation of employees merely requires two or more and that makes it a labor organization. I might suggest or submit that in a case called Masters, Mates and Pilots versus N.L.R.B cited in the brief of the respondents, the Court of Appeals in the District of Columbia has remanded a similar case to the Board stating that in there judgment, they believe a substantial number should participate before making it a labor organization. What the ultimate decision of the Labor Board will be or the courts in receiving appeals in that issue, I do not know. We have argued below in the federal cases and before the Board that on our humble judgment, a labor organization for purpose of 8 (b) in view of the fact that our members have been excluded from Section 7 and Section 8 (a) should be an organization which is primarily supervisors and if it is -- if it is that, it shouldn't be within the purview Section 8 (b). But we've been overruled by the Labor Board and the federal courts. So that we are now in a paradoxical position where before the Labor Board and the courts taking appeals from orders of the Board, we're held to be under the purview of Section 8 (b) and then we get in before state courts and the state courts simply disregarded the decisions of the NLRB and rule on their own. I believe you'll find that from the opinions of the lower court, the opinion of the Supreme Court of Minnesota, their whole thrust in determining whether we were a labor organization or not was that the primary employees involved here were supervisors. And since they were excluded from the National Labor Relations Act, "certainly" said the courts, an injunction should be issued. It was is a curious notion in the courts below and then a part of counsel for the respondents that by uring the issue of preemption here as we are, that we're trying to evade the law and be in a no man's land where no one has jurisdiction over us, quite to the contrary. We're submitting that under the decisions of the NLRB and the decisions affirming there -- theirs that we're simply stating where within the purview of Section 8 (b) apparently and that the National Labor Relations Board first decide.
William J. Brennan, Jr.: Mr. Pressman, has MEBA involved this issue in the courts of other states or as Minnesota do?
Lee Pressman: I think Minnesota, Your Honor, is the first state where we've had the issue up. We've had many decisions in the federal courts where the Labor Board has gone in for what's called 10(l) injunctions, which decisions unfortunately not reported so we haven't put it in our brief. We've had about four or five of those in which labor orders held that we are a labor organization.
William J. Brennan, Jr.: Is the work jurisdictions?
Lee Pressman: Pardon me?
William J. Brennan, Jr.: Work jurisdiction?
Lee Pressman: No, it was a secondary boycott, same issue, secondary boycott. Your Honor, I just simply say in conclusion, and I'm trying to reserve a little time for any rebuttal I could make in (Inaudible), said I submit, this is the very situation which I believe was at the heart or the reason for the doctrine of preemption. Here, certainly the record indicates that there is enough of a situation to urge that reasonably or arguably we are the petitioner or petitioners are labor organizations falling within the purview of Section 8 (b). And it's for the Labor Board therefore to have the primary and exclusive jurisdiction to make that determination, not a conflict among all the state courts, some saying “yes”, some saying “no” and the Labor Board saying some -- making the third decision.
John M. Harlan II: The thing I – suppose this, because I gather you see that it was local, suppose it's not the supervisors or its employees could not be a labor (Inaudible)of the findings of facts, a statement which said not contested to the membership of the local was (Inaudible)
Lee Pressman: No, Your Honor, you may -- I'm -- I'm sure you misunderstood me. I said the lower court made no such finding. What the lower court found was that the employees of this primary employer were supervisors. That was the only finding of fact on that issue. The only thing you have is that statement -- is a conclusion of law that petitioners is not a labor organization within the purview of the National Labor Relations Act. And then we have that sentence in the memorandum of law which I read, where the first thing -- the first part of the sentence says, "Nothing in the record as to any non-supervisory member." And then the rest of the sentence goes on to say, "almost primarily" but does not say that the membership of the petitioners is exclusively supervisors. Thank you very much.
Earl Warren: Mr. Pressman, is there -- is the relationship of engineers to the employers any different on the Great Lakes than it is in other parts of the country where these other -- other cases arose?
Lee Pressman: None Your Honor.
Earl Warren: There is none.
Lee Pressman: None.
Earl Warren: None at all.
Lee Pressman: Situations will vary where on some vessels be it in the harbors and the rivers --
Earl Warren: Yes.
Lee Pressman: -- where our marine engineers will not be supervising anybody and then eliminates them as -- from the status of being supervisors.
Earl Warren: Yes.
Lee Pressman: Marine engineers in other situations mostly in the offshore and on the Great Lakes are supervisors because customarily they have non-supervisors whom they're supervising.
Earl Warren: Yes, though --
Lee Pressman: But we have among our membership as to Graham Transportation case indicates. We have among our membership non-supervisors because the Labor Board has held elections for them.
Earl Warren: On -- on the -- on the Great Lakes?
Lee Pressman: This is on the harbor.
Earl Warren: Now, is there -- how about the membership in the -- on the Great Lakes?
Lee Pressman: On the Great Lakes --
Earl Warren: (Voice Overlap) --
Lee Pressman: -- I would say that the marine engineers on the Great Lakes have primary the same status as those of the primary employer here, the respondent.
Earl Warren: Yes, but my point is do you take into the union other than engineers on the Great Lakes?
Lee Pressman: Your Honor, we take in none but marine engineers.
Earl Warren: Marine engineers?
Lee Pressman: But within the concept of marine engineers. Most of them are supervisors and though a marine engineer, he might not be a supervisor. And we take in marine engineers only.
Earl Warren: And that's on the Great Lakes?
Lee Pressman: That's correct, Your Honor.
Earl Warren: Yes.
Byron R. White: How about Local 101 that you mentioned?
Lee Pressman: What I've just said applies to both the National MEBA and Local 101.
Byron R. White: And you would agree, I suppose there are some fair and legal practices that you could not commit.
Lee Pressman: That we can or cannot (Inaudible).
Byron R. White: You could not commit even though you are a labor organization?
Lee Pressman: No, Your Honor. If we are a labor organization, we fall within Section 8 (b) because Section 8 (b) starts out by saying "It shall be an unfair legal practice for a labor organization to do certain things."
Byron R. White: Now the --
Lee Pressman: Now --
Byron R. White: One of the -- some of them require you to be doing something with the employee.
Lee Pressman: That -- that provision we would not violate.
William J. Brennan, Jr.: That's right. And that's all, really (Inaudible)
Lee Pressman: The second -- I -- I think that was true, Your Honor. I think the secondary boycott provision which under which we would fall.
Earl Warren: Thank you, sir. Mr. Jackson.
Raymond T. Jackson: Mr. Chief Justice, may it please the Court. Preliminarily, I -- may I say that I think there are a number of state decisions in which MEBA has been involved, the one is In re Kelleher, 40 California Second 424, 254 Pacific Second 572. Now, as respondents understand the situation in this Court, the facts which define and delimit the issue before this Court are conclusively determined by the findings of fact made in the trail court. None of which is or successfully could be challenged. Now, I -- and to avoid any conclusion I may make, what I hope is a clarifying statement. The counsel refers to a statement made -- of course, may I say to a sentence in a memorandum filed December 1, 1959 by the Court in connection with the proceeding for a preliminary injunction and they state referred to the first sentence on re -- record 18 in this Court.
Earl Warren: Who filed the statement?
Raymond T. Jackson: This is the trial court's memorandum.
Earl Warren: Oh, I see.
Raymond T. Jackson: And in their brief, they completely emasculate and misrepresent this statement admitting the fact, the first part. The record in this case does not show the MEBA Local 101 admits to membership any non-supervisory employee. And then they have said --
Earl Warren: Now, would you tell us where that -- just where that is.
Raymond T. Jackson: Record 18, sir. And it is the first sentence in the second full paragraph on that page. The record in this printed record in this Court. Then another thing upon which they rely is the statement by their trial counsel which is printed in the record in this Court at pages 24-26, I believe. Now, the record before the Minnesota Supreme Court was filed when --
Hugo L. Black: Are you talking about the printed record? Pardon?
Raymond T. Jackson: Are you talking about the printed record? I am, sir.
Hugo L. Black: This is at page --
Raymond T. Jackson: At page --
Hugo L. Black: -- 24?
Raymond T. Jackson: -- 24 I think, to 26. That is where they undertake to derive some of the facts upon which they predicate their argument. That statement was merely not a stipulation and it was merely a statement made by counsel and was admissible only or at evident revalue only insofar as it constitute in admission against it. And that is expressly so stated by the trial court and the printed records before the State Supreme Courts at page 114, a copy of which was filed with this court in the petition for certiorari. At least confusing as the fact that the plaintiff for petitioners in their statement of the case and elsewhere do not refer to the ultimate findings of fact made by the trail court after hearing on the merits and pursuant to which the permanent injunction was issued anywhere in their brief, instead, when they do refer to any findings, they are the preliminary unamended findings which were made in connection with the order to grant a preliminary injunction. Now as many as cases, I think it makes no difference but it certainly is confusing to me and I should think it would be to the Court to have record citations to something other than the final findings which were adopted in the trail court and which on the basis of its degree. Now --
Potter Stewart: Now the --
Raymond T. Jackson: (Inaudible)
Potter Stewart: The findings, Mr. Jackson.
Raymond T. Jackson: Pardon?
Potter Stewart: The findings, the final findings begin on page 29 of the record, do they?
Raymond T. Jackson: I think the final findings begin on -- on page 29, sir. And they're the ones that are dated or filed on March 16, 1960.
Potter Stewart: And upon which of those findings do you rely?
Raymond T. Jackson: Well, I re -- I rely in all of them.
Potter Stewart: But there are several numbered findings and I thought perhaps you --
Raymond T. Jackson: No, Your Honor, I -- I --
Potter Stewart: Or (Voice Overlap) on one or more of them.
Raymond T. Jackson: I'm afraid I have only added to confusion. I wanted to say that merely that the defendants or -- or petitioners' brief, their statement of facts ignored these findings. Our statement of brief rest wholly upon these findings which were the basis of the degree.
Potter Stewart: I understand.
Earl Warren: But what findings do you point out this -- that's being conclusive against the defendants for the petitioners' position?
Raymond T. Jackson: Well, if Your Honor please. I don't put it -- I -- I think all of them are conclusive as far as the facts they find. Now, I think the effect is -- is -- of their findings, the appropriate ones is also conclusive. But I --
Earl Warren: Is this -- just taking them by and large?
Raymond T. Jackson: No. For instance, finding 13 on page 32, is conclusive upon a proposition which however is not challenged that the trail court directly held that all employees of respondents are supervisors.
John M. Harlan II: Now, do you disagree that the statement, the lower court did not find that all of the memberships, prior memberships of the Local (Inaudible)
Raymond T. Jackson: Well --
John M. Harlan II: (Inaudible)
Raymond T. Jackson: I --
John M. Harlan II: (Inaudible)
Raymond T. Jackson: I reply -- rely on finding 2 of page 29 of the record, printed record in this Court. The defendant, Marine Engineers Be -- Beneficial Association, Local 101 here and after referred to as MEBA is a voluntary unincorporated association which submit -- admit the membership licensed marine engineers employed on commercial vessels on the Great Lakes. Now --
Earl Warren: You read that to mean that they admit only --
Raymond T. Jackson: That's right.
Earl Warren: (Inaudible) engineers.
Raymond T. Jackson: And I -- I don't think there's any kind of worthy that that is true. Now, the only thing that's in the record from the Bull case is an affidavit of the president of this union who swore that they never admitted to membership, any members other than supervisor engineers. Now, as I --
Hugo L. Black: Is that the only -- only one of these findings that you point to as settling the question raised to the effect that all marine engineers are supervisors?
Raymond T. Jackson: Well, I'm not sure that's the only question raised, Your Honor.
Hugo L. Black: Why -- that was -- that wasn't being discussed?
Raymond T. Jackson: Well, I -- I think the evidence, only evidence there is, is to the effect that the -- they take members of the license of marine engineers under Great Lakes. Those are live steam vessel and that all of those are supervisor -- engineer supervisors. Now, I think that if there is any exception to that, the burden is upon these petitioners to prove it. They know who are their members are and they can bring the fool but they didn't do it.
Hugo L. Black: Suppose you are wrong on that.
Raymond T. Jackson: Well --
Hugo L. Black: Suppose --
Raymond T. Jackson: Suppose I'm wrong, my printed proposition as I hoped to develop is that assuming that this Local 101 did have this counsel argued two or three non-supervisor members but otherwise, its membership was -- are composed of supervisors and that we have here an activity directed to trying to compel an employer to recognize that role call as the bargaining agent for its admittedly supervisor personnel that would still not deprive the state courts of jurisdiction. Now, I'd like to just proceed to state my theory, I don't know whether the Court will agree, I hope they will but at least I -- I like to present it briefly. I'll start with the -- this proposition, the -- in 1947, the Congress in amending the National Labor Relations Act of 1935, undertook to exclude the area of labor relations between supervisors and their employers from the NLRA and from the jurisdiction of NLRB. They did that in part by redefining employee and perhaps to some extent, employer and by defining of supervisor so that it would be certain what they meant. Now, that -- if -- if the language could otherwise be subject to a different interpretation, I submit that this is a case in which the real legislative history, the reports of the Committees, of the Senate and the House and statement of the -- of the persons or the members of Congress in charge of the bill on their respective groups conclusively established that this was on -- the Congressional intent and that among other things, they regarded it as a highly important principle. That -- the -- that -- neither that -- supervisors should not be permitted to engage in the regulatory federal scheme on behalf of employees and perhaps on behalf of employers. Now -- and when -- before I go to the sentence of my argument, I mentioned another thing and that is Section 14 (a). Now in the original act, it's printed at page 41 of our brief in the appendix that dealt -- by preceded in the Act by the word limitations, now in other words, Congress put in as in -- as a limitation upon what it had done before with respect to amendments and specifically with respect to the exclusion of supervisors from the area of labor relations covered by the Federal Act. Now, they started and they say, "Nothing herein so prohibit any individual as the supervisor from becoming or remaining a member of a labor organization." To me that seemed unnecessary but it seems to me of this that they put therein and then says nothing herein, that's in these amendments shall be so construed to avoid the possibility that the existence of the amended Federal Act or the amendments themselves should be construed to prohibit supervisors from joining unions where they were permitted to do so under state law. Now prior of course to the Act of 1935, labor relations had been in general and as far as here con -- concerned exclusively regulated by the states and Congress was remitting this area of labor relations to state regulations. Now then however, they were so concerned about what they thought were the evil effects of the earlier act which had been construed in the Petrov case that they added but no employer that has nothing to do with the other -- of 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 two collective bargaining. Now as -- any at all, that isn't this, this amendment. Now I -- I think this was another cautionary move which they did not -- they'd -- they -- in which they wanted to make clear or to provide rather that while they were remitting to the State, the area of labor relations which is -- consist of those between supervisors and their employers. They weren't -- were not to -- permitted to enact interstate law the rule of the Packard decision. Now, our -- our position broadly is this. The real question, I may state somewhat as following. Did the Minnesota State Court have jurisdiction or the right to exercise jurisdiction in an area of labor relation which the Congress expressly excluded from the operation of the NL -- NLRA and from the jurisdiction of the NLRB where -- in order to enforce the statutes in public policy of the State of Minnesota. In other words, to enjoin a continuing violation of the state statutes and interstate public policy insofar as there was no limitation in both. Now, my contention is that, as I involved here, they plainly had that jurisdiction subject only to the limitation that they couldn't enact in interstate law the (Inaudible) decision which had lead Congress in large part to enact the amendments relating to the -- to supervisors. Now, we come then to -- to the proposition, the contrary proposition which is edged by our Brother in -- on the other side. I think we have to approach this matter from this standpoint. At least in my view obviously if the 1904 decide to amend seven amendments, the Congress undertook to exclude the area of labor management relations here involved from the federal statute and from the jurisdiction of the Federal Board. Now, when we come to -- if, and I am doubtful at that, if it were true that you could make a technical argument that some sections of the Act, NLRA applied to some sort of convict with -- in which a union of supervisors engaged, it would be unthinkable that call -- that this Court or any court would cease upon that technical and literal construction to defeat the clearer intention of the Congress which was to restore the regulation of this area of labor relations to the state. Now, as I think Mr. Pressman conceded and as Mr. Friendly's, well then passing, may I say before I -- I go on. Without going into detail, in my opinion, the three decisions of this Court upon which petitioners principally rely have no applications whatever to the instant case. So far as I know, this is the first case, state case in which the question has clearly been raised as to whether doctrines of federal preemptions or primary administrative jurisdiction bar the exercise of state power in a field of labor relations which the Congress has expressly excluded from federal regulation. In the case in which Mr. Pressman principally relied that is the decision in 274 F.2d 137, the court did nothing more than to hold that upon a basis of their sketchy record there presented, and under the principles laid down by this Court in the Universal ever -- ever -- Camera case it could not say that there was no basis for a finding or holding of the NLRB that in that particular case whatever part of MEBA was involved was a labor organization. Now, the court went on and however it -- to say that we are not binding --
Earl Warren: What were the deficiencies in the record that cause the court to -- to take the petition?
Raymond T. Jackson: Well, they relied in part upon an old admission and an old pleading and upon some very -- they have court's passing -- they felt there rather inferences drawn from not the very good development of the facts. There -- but the court said that they -- they could've shown more. The union, they certainly knew who their members were or if they didn't they could find out and they didn't offer any proof and therefore, their court wouldn't upset it. But it expressly said it was just approving it on those facts. Now, I think it's very significant to --
Earl Warren: Might we not have the same situation here?
Raymond T. Jackson: No, not at all, Your Honor.
Earl Warren: Because -- because of a failure to show what the membership consisted of?
Raymond T. Jackson: I don't think so, Your Honor. I -- I -- I would like to just rely to Your Honors' attention to the later decision of the Second Circuit in another field but in which this case wasn't urged and where this union again contended that it was not a labor organization. That is the decision in 294 of F.2d relating to the emergency injunction. In that case Judge Friendly had occasion to refer to it again and says this case, he said in National Ma -- Marine Engineers Beneficial Association, the NLRB, Second Circuit, though we accepted the proposition that a union comprise only of several supervisors would not be a labor organization within Section 8 (b) of the National Labor Relations Act. We held that on the facts there presented, the Board was justified in finding that non-supervisory employees participated in these two unions and hence, in holding them within that Section. Now, if Your Honor please, that case involved tugboats or towboats and barges on England Waters, as I think was suggested by or at least to -- raised by question of one of the justices that the States in between this large boat carry -- cargo carrying steamers on the Great Lakes. And these small barges and towboats and the like on England Waters is very great and in some of the NLRB decisions which are cited by petitioners, they stressed that and point out their completely different situation. Your Honor, we have -- I -- I recognize myself to this point one moment. The only -- the basis of the -- of the -- of our plaintiff argument is, as I analyze it, first, that the jurisdiction of these courts were, state courts, could not be exercised because of doctrine of federal preemption. Now, I am not familiar with any decision of this Court which holds that where the Congress in undertaking to regulate part of a field has specifically excluded what another applied from federal regulation. Nevertheless, it has preempted the state courts from acting in that excluded field. It has always been the law for many years that the mere enactment of a federal statute stick -- to a federal statute did not oust the states of all the jurisdiction. Certainly, has been settled in without question that Congress may regulate a power but only a power of subject matter over which it could exercise exclusive power. So, I -- I said can't be on that doctrine. Then it is on -- it has to be on the doctrine of primary administrative jurisdiction. I submit that is -- is also unavailing. First, I do not know their -- any decision of this Court that holds whereas here, the Congress has carved out part of the subject matter of a particular federal regulation and left it to the states that the question as to whether a particular case follows within the area of that subject matter cannot be decided by a state court or a Federal District Court in which the question is presented. But they must stay awake until this administrative agency makes a decision. Now here, there's nothing involved but questions of law. There's nothing inconceivably that could be suggested which is not within the con -- conventional experience of every justice on this bench, nothing of any of the reasons for it. But I think the primary thing is that in the -- where the question is as to a -- a -- something falling within an area which Congress has expressly excluded from certain federal regulations. It would be unthinkable that the courts could not decide that issue but must send it to an administrative tribunal. It is the same thing as though the question is raised as to whether something that union or interstate commerce are effecting interstate commerce in the very -- by the decision of Justice Brandeis in 270 U.S. -- way back to 270 U.S. He states the claim that -- question as to whether a particular act was excluded from the federal statute which preserve precisely the same ground as did the question as to whether it was in interstate, I think, it was in interstate commerce for -- I think it was in in those days, I don't believe they went to affect this. And -- so I come briefly to this, I do not think that -- well on the first place, it is perfectly clear that Judge Friendly did not hold that a union of supervisors can avoid the state regulations, the field of Government in which the regulation is omitted -- remitted by taking in one or two non-supervisory members. But we come down to this unrealistic technical argument, the only argument -- so apparently it can be advanced that this union can be, if it has two non-supervisor members among 10,000 then the States cannot exercise their regulatory power and their courts cannot enjoin a continuing violation of the state statutes and state public policy. I do not believe that such a theory would ever be adopted by any court and certainly is contrary to what this Court said in the Ryan case 294, I believe it is U.S, but I -- I -- I think to 394. I -- I'm (Inaudible) why shouldn't -- I may be wrong. Now --
Earl Warren: But Mr. -- Mr. Jackson, may I ask this. Has the Board itself ever taken a position on these issues in any of these cases that we've been talking about?
Raymond T. Jackson: Well, they have -- they have -- have this case which would end up before Judge Friendly which involved these towboats in -- on there - on it -- they have -- and I don't know, they -- they are held that there was reasonable ground for enjoining what they were doing as an unfair labor practice. Now, there has been a number of cases on the Great involving ships neither here comparable on the Great Lakes and they held there that none of the engineers or one of them suited specifically our time on tho -- on those vessels are employees that they are all supervisors. But I submit on this question, it's some -- it's something which has to be decided by the Court. Now, starting with the premise that the -- that the United -- Congress has remitted this area of labor regulations to the regulations of the States World War before 1935 subject only to a limitation I mentioned. To -- and then to say that if a union of those supervisors contains one or two non-supervisor members, who would be employees under the Act. The whole Congressional purpose is defeated is certainly inadmissible. I also say that if it were technically true, that the means which are being used by such a union of supervisors could also be regarded in a certain aspect as a -- an unfair labor practice under Section 8 (b). That could not reasonably be made the basis of foreclosing jurisdiction of the state courts in this excluded area of labor regulations that would go far beyond permitting the tail to wag the dog. And it would be using a very technical and narrow thing in -- under periphery of the law have anything in the National Labor Relations Act could defeat the clear intent of Congress in this -- enacting these Amendments in 1947. I submit that if there's any change in that respect to be made, these gentlemen should make their appeal to the Congress.
Hugo L. Black: May I ask you just one question, your time is up, I'm sorry, suppose the situation would reverse your illustration and that there were only two or three supervisors in an organization about, would the Board have jurisdiction to that?
Raymond T. Jackson: I think undoubtedly they would have, sir.
Hugo L. Black: What is that?
Raymond T. Jackson: I think they would have, why?
Hugo L. Black: Yes.
Raymond T. Jackson: Because -- for two reasons. One is that their, the organization is overwhelmingly controlled by employees under the Act. And it falls naturally that they are going to be engaged principally in that -- in the kind of better -- betterly working conditions of employees. I'd like to add another thing, it seems to me we don't reach it here, but if we did reach the que -- that question, I -- I suggest this. Conceivably, a union might have many employees and it might have many supervisors, either in locals or non-integrated basis or an integrated basis, very large number. Now, I submit that the only realistic test would be whether the activity of that union is directed to trying to organize supervisors who are expressly excluded from the Act or whether they are trying to organize, I'm taking of illustration only, employees under the Act. It seems to me it requires reasonable to say --
Hugo L. Black: Who would make that?
Raymond T. Jackson: Pardon?
Hugo L. Black: Who would make that determination?
Raymond T. Jackson: Well, I think if it is close enough, it might be that the Court couldn't but if its close -- if it isn't closed, certainly isn't here I don't get any question about. For instance, American Trust Company, it engages in banking business, engage in a trusting business. Nobody would suggest that for the same principles of law are applicable in both capacities. No more do I think that the same would be applicable to a union in different capacity. But I don't think we ever reached that question here.
Hugo L. Black: Thank you.
Byron R. White: (Inaudible) Mr. Jackson that the court below indicated that under the -- under the state law, these supervisors were employees for the purpose of the state law.
Raymond T. Jackson: I agree that is correct, sir.
Byron R. White: What do you feel the impact if 14 (a) is on that which indicates that supervisors shouldn't be deemed employees for the purposes of any law either national or local.
Raymond T. Jackson: Well, I would think that if it was -- if it was presented in the field of permitting supervisors -- of requiring employers to a -- to -- engaged in collective bargaining, it recognizes that way, it would not be good. I'm not sure that it was. I have erroneously of procedure on that theory that the decision of the questions of state law by the Supreme Court of Minnesota are conclusive here both because they have not been challenged. And also because I understand the rule of this Court could be that the interpretation of the state law by its highest court is all through conclusive except in certain constitutional situations where there might seem to be an effort to avoid the Federal Constitution.
Earl Warren: Mr. Pressman.
Lee Pressman: May it please the Court. There are just two or three very brief comments. First, the case we've heard to by counsel for the respondents In re Kelleher for the case that arose that has -- I believe is completely in apposite in the sense, it did not in anyway raised the issue of preemption. The issue came up under a state statute with respect to certain jurisdictional disputes between various unions but the issue of preemption is not involved in that case. Number two, I'd like to point out that Local 101 to which references has been made is not confined in its jurisdiction to the Great Lakes. The record indicates that Local 101 includes areas in the offshore and harbors activities, and as I stated, Local 101 is the successive union to the union involved in Graham Transportation case where an election was held by the National Labor Relations Board, therefore indicating they do have members who are employees. Counsel for the respondents has pointed to finding number 2 on page 29 of the record as his only finding with respect to the status of the membership of the MEBA. I indicate and wish to emphasize that that finding merely says that the defendant Local 101 admits to membership license marine engineers. There is no statement that that is the exclusive membership of Local 101. And may I point out that the other petitioner in this case is the National MEBA. Local 101 is only one of two petitioners. Lastly, I wish to make this observation. As far as the MEBA is concerned, we argued strenuously before the Labor Board and may I say to the Chief Justice, the NLRB did hold in this specific case, "We were a labor organization because we had a few members of the word non-supervisors." You'll find the actual quotation from the decision of the NLRB on page 11 of our brief where the Board says, "We conclude that some of the engineers whom MEBA admits into membership are not supervisors, and therefore that MEBA is a labor organization as defined in the Act." The Labor Board so held and that was the case that Judge Friendly and the Court affirmed in the case which we have cited. I'd make this last observation. There's been considerable comment --
Hugo L. Black: Has the Labor Board changed their --
Lee Pressman: Pardon me?
Hugo L. Black: Has the Labor Board referred to that sense?
Lee Pressman: I'm sorry, sir.
Hugo L. Black: Has the Labor Board referred to that case since? Has it approved it since or repudiated it since --
Lee Pressman: It has not repudiated.
Hugo L. Black: (Voice Overlap) --
Lee Pressman: We have had no cases that have come up since. We've accepted that that could be the law. And there'd been no repudiation whatsoever. As a matter of fact, there has been another case of the NLRB involving the Masters, Mates and Pilots, an organization primarily composed of supervisors and the Board reaffirmed their decision in that case.
Hugo L. Black: Where is that cited?
Lee Pressman: It's cited in re -- in the pos -- respondent's brief. You'll find it in Masters, Mates and Pilots versus NLRB, I don't have the precise page number. But may I make my -- a final comment. Before the Labor Board, the National MEBA being composed primarily, not exclusively, but primarily of supervisors, we have urged that since our members by and large do not get the protection of Section 8 or Section 7. We should not be brought into the fold of the Act under Section 8 (b). We argued as strenuously as it could possibly have been done. We were overruled, we maintained. There was a quid pro quo for one for the other. We have accepted that ruling that we are under the -- within the purview of Section 8 (b). That is precisely what's involved in this case. Thank you, Your Honor.


Earl Warren: Number 47, Salvatore Falcone and Joseph Falcone versus Herald E.Barnes et al. Mr. Frankel.
Marvin E. Frankel: May it please the Court. In the 10 minutes remaining in this case, I should like to return to the broad point with which the argument of these two cases started. Namely, the point on which the Second, Third and Fifth Circuits have all unanimously agreed that the subpoena power under Section 235 (a) extends to investigations to determine whether revocation proceeding should be brought. Now, the investigation of such cases as we point out in our brief in the Minker case has long been a familiar function of the Immigration and Naturalization Service. It was perfectly familiar to the Congress which wrote the 1952 Act. That Act as the Court knows resulted from a three-year study of immigration and nationality and naturalization problems and their administration. And the functions of the service with respect to this problem of revocation were clear to all as they have been clear to all familiar with this area of the law for 50 years. The common commission, the President's commission on the immigration and naturalization laws in this volume whom shall we welcome going over the functions of the Immigration and Naturalization Service on page 127, listed the central functions as follows. "A -- The service is concerned," the Commission said, "with the admission or exclusion of immigrants, the apprehension and removal of deportable aliens, the conduct of naturalization proceedings and the preparation of denaturalization cases.” This, as I say, has long been familiar to everyone that the Immigration Service conducted this kind of investigative activity with respect to possible cases of revocation. Now, it's against this background, we suggest, that Section 235 (a) must be read. Section 235 (a) extends the power of subpoena for purposes of administrative investigation to any matter material and relevant to the enforcement of this Act.
Stanley Reed: (Inaudible)
Marvin E. Frankel: No, Your Honor. It -- it says, "any matter" and we contend generally said, "It was not to be read anymore narrowly than it -- than it reads." It ought to mean "any matter." And what we say is that if exceptions ought to be read into that broad language, certainly, in exception ought not to cover this familiar central and important kind of function of the Immigration Service which had long been material and relevant to the enforcement of this Act. Now --
Hugo L. Black: Hold on. Your argument there, is it done necessarily to say that anything that the Immigration Board wants to do has to do any duty it has to perform, any kind or character, they can summon witnesses, any witness who might know anything about what they want to investigate.
Marvin E. Frankel: If -- if it is fairly a matter material and relevant to the enforcement of this Act or the administration of the Service, both categories are stated in this general language. The subpoena power is available as it is in other areas of administrative law. For example, in this footnote on page 41 of our Minker brief, we cite 38 U.S.C.131. Now, that says, "For the purposes of the laws administered by the Veterans Administration, the Administrator of Veterans Affairs shall have the power to subpoena witnesses.” Now recently, we had two cases, one in the Fifth and one in the Eighth Circuit where the administrator undertook to use this subpoena power in connection with educational and training statutes of Congress to obtain testimony and records from schools at which veterans were taking such training. Both the Fifth Circuit and the Eighth Circuit upheld the use of the subpoena power for this purpose. This was for the purposes of one of the laws administered by the Veterans Administration and as such, it came within this broad grant of the subpoena power. Those two cases by the way are General Trade School against the United States in 212 F.2d 656, decided by the Eighth Circuit last year and Carol Vocational Institute against the United States in 211 F.2d 539 decided by the Fifth Circuit last year. Now, what we say is that if as all three circuits have held, this kind of problem is a matter material and relevant to the enforcement of this Act that sustains the conclusion of those courts because, "As to any such matter," the statute says, "the subpoena power is available." So, there's no need to look elsewhere in the Act to find a power of investigation and subpoena with respect to any such specific matter. That power is given precisely in Section 235 (a). And the question is as it was considered by the three circuits, as it's been considered by the parties on both sides, is this kind of investigation such a matter. If it is, investigation and subpoena are provided for here. Now, nobody has suggested because I think the suggestion would be baseless that the Attorney General's regulations in 8 CFR 340.11, providing for denaturalization investigation are improper, unreasonable, unauthorized or that the similar regulations in the -- under the prior Act which provided with similar investigations were improper. What has happened now is that the subpoena power which formerly was available only for exclusion and deportation is now available for any matter, material and relevant to the -- to the enforcement of this Act and the kind of investigation undertaken in these -- in these cases is such a matter. Now, there remains, and I'll discuss it briefly, the question whether the person who -- whose naturalization certificate is under investigation is a witness within the meaning of 235 (a). And on that, we review in the briefs and I mentioned yesterday it's important to bear in mind that this is an administrative investigation. That in such an investigation, there are no parties as this Court and other courts have held for this purpose. The administrative agency functions in a way analogous to the grand jury and whose proceedings similarly, there are no parties. Now, under the 1917 Act when the subpoena power was available for deportation proceedings, it was clear and it was held by the Third and Ninth Circuits and a few District Courts which considered the problem that for deportation purposes, a subpoena could be used to compel the testimony in attendance of a person whose possible deportation was being considered. Now, when the statute has been broadened so that it covers any matter, we say there is no reason for reading the word "witnesses" more narrowly. There's no reason to suppose that Congress obviously concerned with this problem of denaturalization and broadening this familiar subpoena provision would warrant the word "witnesses" read differently from the way it had been read so as to exclude the person, to paraphrase the language of this Court in the Morton Salt case, the person best able to give the information sought and possibly least anxious to do so. So, we say that on both points, the propriety of the subpoenas in these cases is clear. The propriety of Congress' power to undo fraudulent naturalization certificates has been sustained by this Court. There is nothing harsh or shocking about the concomitant exercise through the executive of the power to get the facts to determine whether this should be done.Our opponents have conceded that this could be done on pretrial discovery. Congress, we think clearly authorized the performance of this function as a matter of administrative investigation. We think that this way of handling the problem is a sensible one and a fair one, always backed by the power of the courts to prevent oppression and unfairness and after all as in discovery, the courts here have the only power of compulsion to enforce these subpoenas, the high standard of proof to denaturalize, the admitted seriousness of denaturalization. These remain unchanged, but nobody, we think, seriously did not dodge the power of Congress to authorize such investigations and we think it is clearly done so in 235 (a).
Felix Frankfurter: Before you sit down, may I ask you whether the Naturalization Act was or was (Inaudible) made substantive changes with regard to denaturalization, the bearer in the old Section 13 of it.
Marvin E. Frankel: The Act of 1940, Your Honor?
Felix Frankfurter: Whatever, I forget that that's the (Inaudible) amendment.
Marvin E. Frankel: You mean this Act?
Felix Frankfurter: Yes.
Marvin E. Frankel: The Act of 1952?
Felix Frankfurter: Not this Act, but the -- what was the Naturalization Act?
Marvin E. Frankel: There was a Nationality Act of 1940.
Felix Frankfurter: 40. All right, that's what I'm talking about.
Marvin E. Frankel: I believe the answer to that question is no, Your Honor, but I -- I --
Felix Frankfurter: But is that it?
Marvin E. Frankel: -- don't know certainly.
Felix Frankfurter: The Act of 1952 weighed substantively to steer it against the potential -- the potentially denaturalized citizens?
Marvin E. Frankel: I think probably not, Your Honor. Now, I will say that the word, "fraud" was dropped because it was thought that there had been --
Felix Frankfurter: Well, that was because of the old controversy by the extreme (Inaudible)
Marvin E. Frankel: That's right, Your Honor. I think substantively, the naturalized citizen has as tied a hole on his naturalization certificate --
Felix Frankfurter: Substantively.
Marvin E. Frankel: -- substantively as he ever had. Procedurally, Congress, I think made clear, its desire that in proper cases, revocation proceedings be pursued expeditiously. For example, Congress rewrote the rule this Court wrote in (Inaudible) And now, because Congress was anxious that fraudulent naturalization certificates be wiped out as quickly and expeditiously as possible, it provided that state rules regarding vacation of decrees in term time could contrary to the (Inaudible) decision be invoked to vacate naturalization decrees.
Stanley Reed: In -- in denaturalization, does it -- every -- is it always requisite that there should have been a crime committed by the person who -- who's denaturalized?
Marvin E. Frankel: Oh, no your Honor, not at all. For example, the person may fail to meet the good moral character requirement though he has not committed a crime. He may fail to meet --
Stanley Reed: Not at all, no.
Marvin E. Frankel: -- the resident's requirement.
Stanley Reed: But would -- would -- could he obtain a -- a naturalization certificate, which would be subject to be withdrawn unless he had committed some crime in -- in obtaining and sworn falsely as misrepresented his age and so forth or his locality from which he came?
Marvin E. Frankel: I think the -- that under Section 1425 --
Stanley Reed: (Voice Overlap) in terms of the protection, he may have when he went before the --
Marvin E. Frankel: Well --
Stanley Reed: -- establishment.
Marvin E. Frankel: -- insofar as the investigation armed with this subpoena power, may seek answers to questions which could lead to criminal prosecution, the privilege is available. Now, last month --
Stanley Reed: I understand that and it is because of that that I'm asking whether any inquiry could be made and would not lead to criminal prosecution if possible.
Marvin E. Frankel: And -- and I -- I think the answer is yes, Your Honor. Last month, the Costello case was before this Court and certiorari was denied. And there, there was a plea of privilege on pretrial discovery in a denaturalization suit. The plea of privilege was rejected because there, the statute of limitations had ran on criminal prosecution on those matters as to which the plea was interposed. It's a harder question if the statute has not ran on the criminal prohibition against fraudulent obtaining of naturalization, whether questions could be asked which would surmount a plea of privilege. But of course, I would add that we have no pleas of privilege here, but simply a like its refusal to avail the subpoenas.
Hugo L. Black: May I ask you this? If there's a similar practice of investigations by the Immigration Department in connection with alleged crimes committed by aliens and by naturalized citizens in connection with their obtaining evidences.
Marvin E. Frankel: The regulations of the Attorney General provide for the investigation by immigration officers of criminal violations of the immigration and nationality laws. I know of no case where a person has been subpoenaed, solely for the purpose of determining whether he has committed a crime.
Hugo L. Black: But he could be, couldn't he, under your argument?
Marvin E. Frankel: I think the --
Hugo L. Black: By the whole duty as to investigate with reference to a crime as I understand it, to investigate something like the old prohibition and use it here, crimes under the prohibition law. Under your argument, I -- I suppose that the agency would necessarily have power to summon any -- any witnesses it saw fit, subpoena him to give evidence so that you could prepare your investigation to prosecute the man for crime.
Marvin E. Frankel: I think that's right, Your Honor, always bearing in mind that the plea of privilege is available. Other agencies too as -- I've mentioned only one example, Mr. Justice Cardozo's observation in the Jones case. Other agencies too investigate criminal violations of their laws. And the subpoena provisions in the various statutes contain -- either contain a compulsory testimony and immunity provision or are opened to claims of privilege. But in either case, it is a proper and is not an -- infrequently happened that an administrative agency is investigating a possible criminal violations of the laws it administers.
Hugo L. Black: They investigate those crimes against the immigration law besides the -- the FBI who investigates other crimes, do they not? And to prepare them for charges and trials.
Marvin E. Frankel: Yes, Your Honor.
Hugo L. Black: Just like the post office inspectors here.
Marvin E. Frankel: Yes.
Hugo L. Black: Are the post office inspectors, do they have authority to summon people before them to give evidence in connection with crimes.
Marvin E. Frankel: I don't know the answer to that question, Your Honor. The Internal Revenue authorities do have such power and I might say in that connection that there is a suggestion in the reply brief filed by Mr. Fay that this power to compel a testimony under the Internal Revenue laws is not used with respect to possible criminal violation. And that suggestion is based on the testimony of a revenue agent at a criminal trial. Well, the testimony is misleading and the fact is as I think the Court knows from its examination of tax evasion cases that these investigative powers are used with respect to criminal violations. The -- the very heart of the subject of the investigation for Internal Revenue purposes is whether somebody has underpaid his tax, and that is customarily an element in a criminal offense. The person comes in, he may plead his privilege, but I have brought with me a mimeograph of the Internal Revenue Service which quite clearly shows by its restrictions on the use of this power that subpoenas are used in cases where there may be possible criminal violations. And then, as I say, the privilege, if it is appropriate, is available.
Hugo L. Black: Can you think of any reason of policy which would justify giving that power to the Immigration Board in connection with investigative power? It wouldn't likewise apply to giving the same power to the FBI.
Marvin E. Frankel: Your Honor, I said that literally, this extends the investigation of crimes. I've checked with our immigration people and I know of no case where the subpoena has used -- been used in a criminal investigation.
Hugo L. Black: But it could be if your position is sustained for denial.
Marvin E. Frankel: Not -- there's no need for the Court to go this far. We don't have a criminal investigation here. We have -- you see, let me say this.
Hugo L. Black: Did you know a distinction between the two, logically?
Marvin E. Frankel: I think there might be one and I don't think in this case, the Court ought to reach that more difficult problem. Take -- take this point. In criminal prosecutions, the Government does not have available to it pretrial discovery against the defendant. Our opponents conceive that this way of finding the facts is available with respect to denaturalization. On the same way, when you subpoena in somebody for purposes of a purely criminal investigation, you trench on the area of the privilege and you may raise a question which does not arise here as to whether you would have bring him at all. Now, I know of no case in the Immigration Service so far where there has been done. And what I say is that if you apply the plain language of 235 (a) to reach this matter, which we think is squarely within it, it's unnecessary now to decide how you would treat a matter where purely criminal investigation was being fortified by the use of the subpoena. Thank you.