Earl Warren: Number 110, National Woodwork Manufacturer Association et al., Petitioner, versus National Labor Relations Board and Number 111, National Labor Relations Board, Petitioner, versus National Woodwork Manufacturer Association et al. Mr. Mahin.
Charles B. Mahin: Mr. Chief Justice, may it please the Court. The petitioner here consists of companies that make doors and millwork. They manufacture prefabricated doors that are used in constructions throughout the United States in the Philadelphia area. This case involves a product boycott of these prefabricated doors in Philadelphia by the Philadelphia Carpenters Union, and this went on throughout its five-county jurisdictional area. Now, the specific questions are, in Number 110, whether the Union's boycott of doors on a so-called Frouge job, violated Section 8 (b) (4) (B) of the Act, that Labor Relations Act, and in Number 111, whether the boycott agreement of Union Rule 17 violated Section 8 (e) of the Act. But Your Honors there's a broader question in this case, a question of principle. And that is, whether unions throughout the country can draw boycott curtains about their respective communities, banning there from factory-made products and factory-finished products of many kinds. Because if the Philadelphia Union can draw a -- an embargo upon prefabricated doors in that city, the Electrical Workers Union in Allen Bradley may resume its boycott of electrical equipment and prefabricated products in that case. The glaziers' union in the Chicago Joliet Contractors case can resume their boycott of pre-glazed factory-made windows and over in Cincinnati, the Carpenters Union can resume its boycott of pre-hung doors as in General Millwork, and on and on. And that is the reason Your Honors, this public detriment, this adverse effect is the reasons so many industries throughout the country are before the Court here today as amici curiae stressing the illegality of this sort of union boycotts.
Byron R. White: But what was the basis for the illegality in these other cases?
Charles B. Mahin: In the other cases, the same provision in 8 (b) (4) (B) in the cases I referred to, except down in Allen Bradley which I'll refer to as an antitrust case. I'll come to the cases specifically too Your Honor. Now, the statutory provisions are contained in our brief in Number 110 at page 2 and I might mention that our brief in that case is a consol -- has a consolidated caption of 110 and 111, and I ask that you disregard the Number 111 on that white document and strike it if you care to. Now, an offense under 8 (b) (4) (B) embodies two elements, union inducement of employees to strike or coercion of an employer for an object of requiring any person to cease handling of products of another producer or manufacturer or to cease doing business with any other person. The other statutory provision is Section 8 (e). Now, this was enacted in 1959 to complement and close a loophole in 8 (b) (4) (B). Now, this Section then in essence makes it unlawful for a union and an employer to enter into any agreement that the employer will cease handling the products of any other person or cease doing ba -- business with any other person. Now, the 8 (e) provision has a proviso which is involved here and that is that there is exempted from 8 (e), agreements in the construction industry, relating to the contracting or subcontracting of work to be done at the site of construction. Now, what I would like to do if the Court please is to state brief with the nature of the case then go to the 110 case, that's the 8 (b) (4) (B) then the 111 case. Now, the facts can be briefly summarized are not materially in dispute. These prefabricated doors, are doors which are sized, cut, pre-hung, laminated, treated or in some other ways substantially fabricated at the factory. They have economic and aesthetic advantages, was testified and they're being used increasingly in construction throughout the country. The core of the Union's boycott campaign was Rule 17. Now, the key part of this rule was, and it's quoted in our brief 110, page 7, beginning at the second sentence, "No member of this district counsel will handle material coming from a mill where cutting out and fitting has been done." And going on, "nor any doors or transoms which have been fitted prio -- prior to being finished on the job." Now, this Rule 17 by its terms and as enforced by the Union, barred prefabricated doors from Philadelphia. The particular difficulties started in February 1963 when the Philadelphia Union manager wrote to President Hutcheson of the Brotherhood of Carpenters, the national organization, that there was a serious problem of prefabricated doors flowing into Philadelphia. This was followed by the campaign to bar doors and that resulted in the four cases we have as the basis of this case today. And today, there are boycotts on four jobs, hospital jobs, school jobs and housing job, and the last one was the contractor Frouge job that I had mentioned earlier. On these first three jobs, the prefab doors were specified by the owners. On the Frouge job, there was an open specification on Frouge that he used these doors because they save time and money. But the essential feature of the case, if the Court please, is that the union conduct on all four jobs was exactly the same. The Union enforcing Rule 17, refused to install over 4000 jobs -- doors, made by manufacturers in Wisconsin, Penns -- Pennsylvania and Indiana who where the charging parties in this case. Now, the decisions below, on 8 (b) (4) (B) were, that the Board and the Court found, that the Union's boycotts on these first three jobs were illegal under 8 (b) (4) (B) because the real targets of the Union were the prefabricated doors and those who manufactured them and distributed and used them. The Court likened the boycott to the one in the Allen Bradley case and the Joliet Contractors case. But on the first job, the Board held there was no violation because the specifications didn't require Frouge to use these doors and under the Board's new control theory which is the issue in 8 (b) (4) (B), Frouge was the sole objective and the Court apparently going on on this theory agree. With reference to Section 8 (e), the Board held that Rule 17 was only a work preservation rule, non-violative 8 (e), the Court reversed and held that Rule 17's ban on the prefabricated doors violated 8 (e). Now, turning first to the 110 case, we have in this case if the Court please, a typical form of product boycott, which is consistently been held illegal for 20 years except for these recent decisions of the Board since 1947. Now, this marked change in the thinking of the Board, as revealed by the fact that the general counsel for the Board only three years ago in accordance with his then understanding of the law filed a complaint and prosecuted the case on essentially the same basis that we are contending before the Court today. Now, the Board reversed its general counsel and today of course counsel is supporting the Board's current position. I'd like to call first the attention at our brief page 20 that -- that the statutory language of Section 8 (b) (4) (B), is aimed precisely at the type of boycott conduct carried on by the Union under Rule 17. The language is plain, contractor Frouge as a person, the prefab doors which he was forced to stop using, are products manufactured by other producers. Now, Your Honors, there is nothing in the statute nor in the legal history that provides product boycott immunity because of the immediate employer's legal freedom to comply with the Union's boycott demand, nor is there anything which relates to the Union's desire to preserve work. On the contrary, the circumstances which led directly to 8 (b) (4) (B) in 1947 and the legislative history demonstrate that Congress intended to outlaw just this kind of a boycott. Now, as I reviewed in our brief, page 110 and page 21, a prime concern of Congress, and this is a very important point I think, was the embargo and trade restraint aspects of product boycotts. Although 8 (b) (4) (B) is a labor law and not an antitrust law, its roots are grounded in antitrust law. Now, this Court pointed out in Allen Bradley applying the Sherman Act and again in inter -- International Rice Milling in applying the Labor Act that this Court over the years has been concerned with two congressional objectives. One, which seeks to preserve a business -- competitive business economy and the other which seeks to preserve the rights of labor to preserve its own conditions. But Your Honors, the problem is this, that in its recent decisions, the Board has come to disregard this first congressional objective and has focused almost on entirely on the second one, namely that of union self-interest. Now what led the Taft-Hartley in the beginning? Because in the Hutcheson case, by this Court and others -- other cases of the same type, at the time of this Court's decision, 1945 in Allen Bradley, union self-interest was recognized as justifying virtually all forms of economic activity including product boycotts. And as the Court will recall, Allen Bradley involved an area product boycott in New York City, much like that we have here. It was if you please a pure embargo type boycott. Local 3 there would not install prefabricated and other electrical products made outside of the city. It wasn't concerned with the manufacturers or they were, whether they had unions or what their working conditions were, they -- or their union status. They even barred products from across the water in Jersey City. Now, in that case, the ultimate objective of the Union was obviously work for its members. But the immediate objective as a means to that goal was the boycott of the blacklisted products. Now, this Court of course held that the Union conspiracy with -- combined with non-labor entities violated the Sherman Act. But the significant dictum which triggered the Taft-Hartley Act was that similar boycotts by the Union acting alone were immune from the antitrust laws. Now, this was the thrust of the case and its impact on congressional thinking in 1947. The legislative history is revealed in our brief at 110 and I want to refer the Court, if I may, to the brief of amicus associate general -- Associated General Contractors of pages 43 to 50. And I mentioned here just three factors of that history if I may. The first is this. In connection with 8 (b) (4) (B), Allen Bradley was the most commonly cited reason for 8 (b) (4) (B). Congress went after Congress then testified that that was one of the kind of boycotts, that was intended to be outlawed by the Act. And in the Senate Report No. 105 itself, this is referred to and even the committee hearings explaining it, are incorporated by reference. It is the one under theory in other words that Your Honors that 8 (b) (4) (B) was directed against the embargo type products that we had that was in Aden -- Allen Bradley and that we have here. Now, the second history, historical point, that debates are full or pleased by the Taft-Hartley opponents to save what they call justifiable boycotts. And these were referred to as boycotts made by non-union people, boycotts where there were subcon -- substandard conditions or boycotts to keep union men from having to work with non-union members. But nobody in that whole history tried to defend or justify these pure product embargo boycotts such as Allen Bradley and the present case. These were recognized as indefensible and for instance, Congressman Javits who is one of the leading opponents of the Taft Act, pleading to say what he called justifiable boycotts said this, and we quote this in our brief at page 33, "This is not the kind of boycott which is contrary to the public interest. That other kind results from a misguided labor union's efforts to keep certain goods out of a market, of new inventions or new methods. But while dealing with this legitima -- legitimate abuse, the bill also has the effect of depriving labor and so forth and so on. Now, the third feature of the history, I would invite your attention, to which I invite your attention, is that the language of the proscription part of 8 (b) (4) (B) was specifically changed in conference to make it perfectly clear that unions could no longer plead self-interest as justification for secondary boycotts as they had before Taft-Hartley. And our brief on that -- covers that at 33 to 36. Now, what was done? The words "for the purpose of -- were deleted and the words -- where an object is" were inserted. And as this Court shortly thereafter, explained in the Denver Building Trade's case, our brief page 35, this change was to take care of the situation of dual union objectives, one lawful and one -- one un -- unlawful as we have in this case. Now, the legislative purc -- purpose if the Court please has been faithfully carried out with the Board and the Court since that time. The crux of violation under 8 (b) (4) (B) is the existence of an unlawful objective without regard to factors of work preservation or this new one, this new so-called control idea that the Board have, and these cases are reviewed at 35 to 44 of our brief.Now, I'll mention only three here to illustrate the point. The first product boycott case was the Wadsworth's case, hardly involved a boycott of prefabricated building materials. The union in Kansas refused to install prefab components made in Nebraska because of an organizational argument with the manufacturer. But the point here is, that the Union's whole defense was economic self-interest which they had successfully pleaded in every boycott case since 1932, the Norris-LaGuardia Act up to the time of the Taft-Hartley Act. But this was rejected by the Board and later the Court. And the Board said, Congress considered the "product boycott" one of the precise evils which the provision was designed the curve and Chairman Herzog concurring said Congress had -- was attempting to deal a death blow, the secondary boycotts, whether for economic or for other reasons. I must mention then the Joliet Contractors case, this was a parallel of Allen Bradley and the present case here. The glaziers' union in my hometown in Chicago barred all of the glazing in that area. No windows glazed at the factory, no window units could be used there. There was no dispute with the manufacturers, it was a typical work preservation boycott, all must be done on the jobsite. Now, the Seventh Circuit expressly rejected this work for preservation of argument in the absence of any dispute of the manufacturers, and why, because it was a boycott target. And it said, the target was the use of pre-glazed sale in any and all who handled, used or sold such sales, or the intended and actual victims of the boycott. Now, the many and many additional cases we cite, but I go on to the third one which I must mention as one of our leading cases, and that is the General Millwork case on the Sixth Circuit, our brief at page 40. Now they're speaking for the Sixth Circuit, Mr. Justice Stewart who was then Judge Stewart, held that a union product boycott of pre-hung doors which are the -- the same type of doors which are barred in Philadelphia here, was unlawful despite claims of work preservation and the absence of many dispute with the -- any manufacturer, because the union objective was the boycott of these doors. And as quoted by the Court in reference to the absence of a dispute by the manufacturers, "Neither literally nor implicitly does the Act require the existence of such a dispute as a condition of its operation. And on through the cases until Landrum-Griffin in 1959, when the -- this provision of the Act was not changed except by strengthening it, and we find at that time that Landrum-Griffin as the Court has undoubtedly aware was to plug loopholes in the Taft-Hartley provision. One of them had been revealed by this Court's decision in the Sand Door case. But the purpose of Landrum-Griffin under 8 (b) (4) (B) was to strengthen the Act and the apparent reliance of the court below on this primary strike proviso which was added -- was misplaced. This proviso was added to merely to make it clear because of a change that has been made, that the Act does not bar primary strikes at a picket line and so forth, such had been held not to have been barred under the Rice Milling case, and the same principles were applied in the cases after Landrum-Griffin as before. Now, coming to this control theory the Board is talking about now, the basic fallacy of this control theory as applied by the Board, is that it makes the incidental factor of the immediate employer's ability or willingness to capitulate to the boycott demand, control or determinative of the Union's objective. But under the statute in the cases, if the Court please, it is the existence of an actual boycott ob -- objective that's controlling and not the legal or economic ability of any particular employer to capitulate. Therefore, when this Board's control yardstick points to a different objective than the real objective, it necessarily conflicts with the statute, and that's what happened below. Since contractor Frouge had control, that is the freedom to buy, the Board found he was the Union's sole target. But it is patent Your Honors that the Union had the same boycott target on the Frouge job as on the other three jobs for a violation that was for -- found. By enforcement of Rule 17, the Union prevented the use of prefabricated doors on all four jobs and the only way its goal under 17 could be accomplished on Frouge as the other three was by the prevention of the use of these prefabricated doors. On his brief in 110 here, the Board seems to have shifted its position. And in large part to have abandoned this control basis of its decision, that all -- I appoint it's a -- to its brief in 110 at page 19. It now has resurrected this long discredited theory of work preservation in the absence of a dispute with the employer, and it seeks to justify the Frouge boycott on that basis. Well, Your Honors, I submit that the Board's shift of position doesn't help its case. Because as we've seen, neither of these factors has ever been a defense under 8 (b) (4) (B) cases. Now, perhaps the quick answer, the best quick answer, that the Board's new contention is its findings on what it told the court below as to its findings of violation on the first three job. On all four jobs, including the three where violations were found, the factors of work preservation in the absence of a dispute with the manufacturer on which the Board now relies were the same. And citing the same cases --
Byron R. White: What are you reading, you're reading from?
Charles B. Mahin: I'm reading from their brief --
Byron R. White: In the Court of Appeals.
Charles B. Mahin: And the -- I'm reading now -- as quoted in our reply brief 110, page 5, from their brief in the Seventh Circuit below, reply brief 110, page 5. Now, what they told the Court was, they first pointed out that the absence of a dispute with the manufacturer was utterly immaterial and --
Byron R. White: Is that the -- prospectus before the Court of Appeals is the same thing that the Board puts itself?
Charles B. Mahin: Yes. The -- before the Court of Appeal in sustaining the findings of violations on the first three jobs. The Board told the Court that these things were true, you see. On the first three jobs they found violations. They found violations on the first three jobs for precisely the same reason, they now say are not the reason for the violation on the Frouge job.
Byron R. White: Does this confer with the time to control the Board's need to (Inaudible) whether the job is controlled?
Charles B. Mahin: Exactly correct. On the 8 (b) (4) point below, the decision is pure control.
Byron R. White: Even if the grounds were set on these.
Charles B. Mahin: Sir?
Byron R. White: Even if the grounds were set on, the Board would be upheld.
Charles B. Mahin: I'm pointing out two things, if the Court please. First, they change their position and secondly they are wrong anyhow. And I merely say that what they told the Seventh Circuit below was exactly the law, insofar as we can find it. Now, going on, they told the court below that work preservation wasn't the defense and I am contending to read because the Union's refusal to handle the doors was unlawful. And "its sudden law that if an object of Union's activity is unlawful, other lawful activities do not insulate its conduct from the reach of 8 (b) (4) (B)". And so concluding this first 110 point, we submit Your Honors that the boycott of prefab doors on the Frouge job violated 8 (b) (4) (B) just as the boycotts on the other three jobs. There's no valid difference. Now, the second case Number 111 is covered by our brief and that case of course and our reference it'll be to it. Here, we contend the Rule 17 violated 8 (e) as found by the court below. Now I'd like to first take a quick look at this Rule 17 itself again. Our 111 brief, you'll find it at the bottom of page 4. The core of this rule, no member will handle material coming from a mill where prefabrication has been done. Now, what mill? Any mill in the United States Your Honors that sought to make and sell and to distribute prefabricated doors in Philadelphia. The admitted purpose of Rule 17 was to close Philadelphia to these thousands of prefabricated doors that had been flowing into the area. Now, there's no real dispute to that. Union Manager Gray --
Byron R. White: Does this came to mean that they were doing such thing that said that this portion will not use prefabricated doors?
Charles B. Mahin: I think that you would have -- would have to Your Honor, decide the meaning of the words "will not use prefabricated doors." Now, whether in arriving at that meaning, you took into consideration the effect, I don't know.
Byron R. White: What part of the rule says that in order to (Inaudible)?
Charles B. Mahin: I think that whether you have --
Byron R. White: It does not mean to be fabricated.
Charles B. Mahin: Well, now we have just finished the 8 (b) (4) (B) point. If we -- if there was a strike to enforce that and the effect of it was that the doors were not used you'd have an 8 (b) (4) (B) boycott.
Byron R. White: Well, I don't know whether it's fixed --
Charles B. Mahin: We'll I'm -- we'll come to that on that point.
Byron R. White: It's not going to the extent that you didn't -- would you -- would -- would the argument be the same as the --
Charles B. Mahin: I think it would be precisely the same, and an illustration is the rule in the Joliet contractor's case which was phrased the other way. It was all glazing will be done on the glass jobsite.
Byron R. White: Well, what if it also says that if the glasses for example like (Inaudible) if the Union and the employer then agree -- then agree the employer will not contract Fibreboard, could it happen to them?
Charles B. Mahin: Yes it would, because Your Honor, for whatever the man's doing at the local job, the effect of it has an embargo impact of breaking off relations between them and others.
Byron R. White: But what the Fibreboard doesn't happen to them.
Charles B. Mahin: Well, the Fibreboard case forts -- if it --
Byron R. White: The Fibreboard doesn't claim to make the contractor's work.
Charles B. Mahin: The Fibreboard case involved if the Court please, the bargaining case. Whether it was bargaining, collect -- or mandatory subject to bargaining on the --
Byron R. White: But the Court would have said that the bargain will have provision of its duty?
Charles B. Mahin: No. Let's assume that that has the effect of -- of establishing a -- a legal position. That had to do with the subcontracting of work -- in of maintenance work in the physical confines of a plant. Now, we take the position Your Honor that whatever may be the situation under 8 (e) of the subcontracting of work propositions that when you have a boycott of a product, of a product that's made elsewhere you have a different condition. And we hope to be able to satisfy the Court of that. Now, coming with this 8 (e), there's no dispute that this was employed to keep doors out of Philadelphia. Manager Gray said that rule of prohibited doors and that contractors who use the doors were breaching our agreement. And that he intended to prevent the use of such doors by enforcement of Rule 17 throughout his jurisdictional area. Now, I'd like to consider the application of 8 (e) to this rule. Section 8 (e) prohibits employers and the Union from handling the products of any other employer. In other words, it expressly applies to 8 (e). And the Board concedes this, I think at page 111 -- in its brief at 111 at page 11. That the language of 8 (e) expressly covers rule (e). So what's the problem here? There was -- that the court below found no problem. But I submit that the problem is, that the Board has engrafted on 8 (e), an administratively devised exemption for primary work preservation agreements. Now, we think the Board is wrong. By its fixation on work preservation, the Board has disregarded the specific prohibition of agreements to boycott the products of others which is written in the 8 (e). Now, these agreements have dual objectives, the work preservations are probably but certainly, the objective of boycotting products of other people. Now, I think what's happened here is that the Board is reverting to the Hutcheson case concept that union self-interest excuses product boycotts. But as we've seen, Congress intended Taft-Hartley to change that situation and there's no certain that Congress had the same intention when it enacted 8 (e) in 1955. Now, the Board tries to justify as departure from the strict language of the Act by saying that it can't be interpreted literally because that would ban all primary strikes. Although we submit that's not a relevant argument here. It's true as the Court explains in Rice Milling, that this does not ban primary strikes and so forth.Because the picket line interference is incidental. But here, the fact that it doesn't apply literally, doesn't give the Board free reign to depart from the Act in other situations and write in its own limitations.
Byron R. White: But you do agree with the Board, I think that 8 (b) (4) (B) and 8 (e) should be construed the same way?
Charles B. Mahin: I agree Your Honor. I agree that they should be. And just the question which -- which tail wag, which dog I think. Now, as the Court pointed out in Denver, the key in these cases is the ascertainment of the Union's real objection. And I'd like to point out this distinction, in the conventional strike, the -- the working conditions and recognition and the like. The boycott of other people is not the objective of the Union. The interference with others is only incidental to the basic strike. But when the boycott of other people becomes a subject of the strike, the boycott is not incidental but certainly is the and at least an object of the strike. The struck employer is powerless to grant the Union's demand except by boycotting and discontinuing the handling of the products of other people and in Philadelphia here for instance. These contractors could not comply with Rule 17, except by boycotting the products of our charging parties in this case. Now, the answer of course is what Congress intended and the legislative history on 8 (e) is an important factor here. We submit that the congressional intent on the phase of the statute and the legislative history demonstrate that 8 (e) was intended to outlaw boycott rules just like 17. Now, of course 8 (e) was intended to complement 8 (b) (4) (B). This Court's decision in Sand Door pointed out that a boycott agreement although not a defense, although a -- a defense in an 8 (b) (4) (B) case was lawful in itself. Now, the Congress faced with this decision, concluded that agreements to boycott like consummated boycotts should be outlawed as against public policy and they did so. Now, the legislative history has reviewed in our brief at pages 19 to 35, on the brief of the Associate General Contractors 50 to 59. And I'd like to comment on only a few significant features of it. First, the Board's contention that the legislative references to Teamsters 'hot cargo' agreements, evidences an intent to exclude other forms of boycott agreements, just was wrong. Now, here's what happened. The original Kennedy-Ives Bill, which was introduced in January 1959, contained only labor reform. The Taft-Hartley proponents wanted to get in amendments. Now, to get on to this reformed legislative bandwagon so to speak, they had to have our whipping boy and they picked out the Teamsters Union on 'hot cargo'. And they succeeded in the Senate in getting an amendment which may ban boycott agreements in the transportation industry and they tried to expand that there but they failed. In the House, however, they broadened this to include a prohibition against agreements to boycott by all employers. And the after the conference accept this as the breadth, breadth of this new provision, Senator Kennedy himself explained it as follows and I refer to our brief 111 of page 28. The Landrum-Griffin bill extended the 'hot cargo' provisions of the Senate bill which we applied only the Teamsters to all agreements between an employer and the labor union by which the employer agrees not to do business with another concerned. So after broadening, 'hot cargo' became synonymous with an agreement to boycott the products of other employers. Now, the second feature of the Act, of the legislative history, from January 28 until September 3rd, every admin -- every Landrum-Griffin bill that was introduced and there were lot of them, contained in Section 8 (b) (4) (B) itself, a proscription against an agreement to boycott. In other words, it necessarily had to be as broad as the section itself. Now, this provision was dropped from 8 (b) (4) (B) in conference September 3rd. Only after the conferees were satisfied and said, they were satisfied that 8 (e) was as broad as the 8 (b) provision had been, and we've covered this at page 25 on our brief. Now third, all of the opponents of 8 (e) in the Congress, clearly understood the broad sweep of the section and reportedly said so, our brief at 27 to 30. Now, after pleading for the same justifiable boycotts as they had in 1947, they accepted the broad scope of 8 (e) with only two exceptions. The limited one for the construction industry I referred to and the broad one for the apparel industry.
Byron R. White: Can I ask you a question?
Charles B. Mahin: Yes.
Byron R. White: Apparently that was intended by the -- that it was intended for the labor union that -- that's what it comes from.
Charles B. Mahin: That's correct.
Byron R. White: That it expected what kind of work done.
Charles B. Mahin: Worked at --
Byron R. White: (Voice Overlap)
Charles B. Mahin: Work to be done at the site of construction.
Byron R. White: Now, let's assume that -- that the rule is that these county workers have decided not in their own, that that's exempted in the Act?
Charles B. Mahin: Well, that is a -- a possibility if you wanted to view it that way, except --
Byron R. White: But what view in the affirmative that may it well be that then -- that (a) (e) covers or there was no one other important (Inaudible).
Charles B. Mahin: Well, that's possibly true. Viewing it -- viewing it --
Byron R. White: Why the -- did you have to have two employers involve? (Inaudible) of the two employers involved and that the review will take the place on the site of construction and no other place (Inaudible)?
Charles B. Mahin: That's correct, that's what they're arguing here.
Byron R. White: That would be with the employer.
Charles B. Mahin: That's right.
Byron R. White: If that would be then your position is correct that it wouldn't be covered by the rule.
Charles B. Mahin: I think Your Honor is exactly correct and even more than that, this proviso as you say points out for work to be done at the site of construction. Senator Kennedy himself wrote the proviso, pointed out if the proviso does not cover boycotts of goods manufactured in an industrial plant for installation at the jobsite or suppliers who do not work at the jobsite. Now, there were repeated references to the reason for that and I suggest to the Court that the meticulous care with which the proponents pointed out that products made offsite were not within the proviso demonstrates their belief, the Section 8 (e) -- (8) (e) itself covered such, otherwise there --
William J. Brennan, Jr.: Covered what?
Charles B. Mahin: -- would have been meaningless.
William J. Brennan, Jr.: Covered what?
Charles B. Mahin: Sir?
William J. Brennan, Jr.: I can't catch your words, it's been covered by --
Charles B. Mahin: That Section 8 (e) itself covers or bar such, otherwise there'd be no meaning to the point that the prefabricated -- the proviso did not cover the offsite products.
Abe Fortas: If you would draw the line -- you would draw the line simply on the basis of whether the product is made offsite, is that correct?
Charles B. Mahin: I would excuse -- a large extent Your Honor. In this respect, just as Congress did.
Abe Fortas: Is there any -- is there any qualification that should make to that?
Charles B. Mahin: Well, let's -- the basic thing is, what did the man boycotted the product intent, and what did he do? Now, if the intention is to bar products made offsite, at least insofar as this case is concerned, do you have illegality? Now, whether there are additional illegalities with reference to restraints on subcontract --
Abe Fortas: I understand that, but my Brother White's questions it seems to me test what you've just said because suppose in the search for the lucid quality of intent, it is established that all he had wanted to do was to have all the work done on site and here comes in some product that's prefabricated offsite and he says, "My intent is pure." You can't bring in this product -- these doors that are fabricated offsite. So that it could get just to the question of intent, perhaps it's very difficult --
Charles B. Mahin: I think --
Abe Fortas: -- in the case. So I was asking you whether the standard that you're suggesting to us is the objective one in this proclaimed simple line between onsite and offsite or -- or whether he had some other --
Charles B. Mahin: Well and -- insofar as the --
Abe Fortas: -- standards in mind.
Charles B. Mahin: Insofar as the proviso application occurs, it is expressly by statute limited to onsite situations. But the question I think you're asking is this and my -- that can the contractor and the Union, with the purest of motives, work preservation law of everything else make a boycott agreement that products manufactured by other people, away from there can't be used in this area, I say violates 8 (e). Now --
Abe Fortas: So you'd do it right. I understand you -- I'm not --
Charles B. Mahin: Yes I --
Abe Fortas: -- so that's why I'm seeking information there.
Charles B. Mahin: I appreciate your question --
Abe Fortas: And you do. You would then draw the line regardless of intent really, wouldn't you?
Charles B. Mahin: I think so. And so far as the embargo aspect of this sort of agreement --
Abe Fortas: Yes.
Charles B. Mahin: -- is concerned, such as you had in Allen Bradley. I can't conceive for instance Your Honor that an agreement barring the products that were held illegal under Section 8 (b) (4) (B) or would have been under Allen Bradley situation, would be legal under 8 (e) and Joliet Contractors, the agreement not to permit pre-glazed doors to come in to Chicago. Now, I am going to pass the thing which I think we've discussed that these cases must be -- these statutes must be construed to me in the same thing, they are close in pari materia, and as Mr. Justice White pointed out that the argument which tail wags, which dog possibly, is my position that my dog was there forced and the tail was tucked on to it. Now, the Board cites a number of work assignment cases of subcontracting cases which I can only touch here because of the time situation. It's our view that these subcontracting cases which have to do with who will do work in these local jurisdictional situations, involved special problems such as common situs problems, such as this Court had in the General Electric case of the common -- the extra gain and all of that. And whatever may be the eventual law on these subcontracting cases and the writers are still debating how that's going to come out. We --
William J. Brennan, Jr.: Mr. Mahin, I -- I would like to --
Charles B. Mahin: Yes.
William J. Brennan, Jr.: Supposed this one with the bill had been a failure of this whereas for 35 years, now this contractor has had doors submitted by the employee either on the jobsite or in the employer at the plant. Now, whereas the parties intend that that practice of jobs continues in the end that his employee may always enjoin that work and therefore they were sure that these would be the cases with the features. The employer say that they will not buy any offsite and any type of prefabricated doors to install on any workplace or --
Charles B. Mahin: An agreement --
William J. Brennan, Jr.: I thought -- that's the whole agreement.
Charles B. Mahin: Alright, fine.
Byron R. White: Will you still make the same argument?
Charles B. Mahin: I make the same argument because of the embargo pact -- impact on products manufactured by other people.
William J. Brennan, Jr.: That you make assignments?
Charles B. Mahin: Exactly. Yes. Now, we just -- we distinguished these work assignment cases, we hope the subcontracting cases on the basis of the fact that we have here a product embargo and not a work assignment. Because, we contend that it's one thing to divide up the work after products have come to a job or an area, as to which union is going to put on this or that. It's another thing to draw a line around that place and say what products can come there to the first instance. In the one case, your subcontracting work, in the other case you're embargoing products which we think is outside the scope --
William J. Brennan, Jr.: And I think you're going to stress that area.
Charles B. Mahin: Yes.
William J. Brennan, Jr.: You would confine a part of it in the principle of Fibreboard and the subcontracting of maintenance first and --
Charles B. Mahin: No, I would -- Your Honors, how this subcontracting thing is going to come out, I don't know. I would say that the Fibreboard's impact certainly is relate -- first, the Court pointed out in that case that it was limited to the specific type of subcontracts there involved.
William J. Brennan, Jr.: Which in that is as I recall --
Charles B. Mahin: Happened to be a maintenance one, but it has broader scope in that.
William J. Brennan, Jr.: It also had to do with -- with how did you work, fill them on the premises by offsite employees.
Charles B. Mahin: That's correct. And the work you were talking about in any event Your Honor was going to be done on the premises. It was not dealing with work that would be done elsewhere in Wisconsin instead of Philadelphia.
William J. Brennan, Jr.: That would bring in the subcontract.
Charles B. Mahin: That's correct.
William J. Brennan, Jr.: And that's the basis for your distinction?
Charles B. Mahin: that's the basis of our distinction.
Byron R. White: You would think that it had the part that we're dealing here (Inaudible) and that the Board had sort of admission part of it --
Charles B. Mahin: So that has to be a line some place. If someone is subcontracting cases are going to be found labeled, there has to be a line somewhere between them and the product boycott situation, where that line is going to be, I don't know.
William J. Brennan, Jr.: Well let's take it supposed that -- yes, supposed -- supposed what we had is a -- is a door manufacturer and there were in the beginning that a particular time before it could always be made at his plant. And as he would never contract out of the biggest manufacturer of the door or instead of -- out of the manufacturer to agree that he would never purchase this kind of doors, suppose that would have followed.
Charles B. Mahin: That would be violative of 8 (e) in my judgment Your Honor. In the same manner as a like agreement with another employer would violate the antitrust laws.
William J. Brennan, Jr.: As it does with fabricated doors come out of the place of working premises.
Charles B. Mahin: It does, unless you make a distinction. I think it does unless you make a distinction between the localized nature of work on a premises, the same thing you get involved any of your common situs cases and something that has an embargo effect reaching out and disturbing the products that can move in the channels of distribution. And -- we say the rest of distinction between these localized situations how you divide up work, and one which draws a line around a thing and keeps these products out. Now, and I think it couldn't be better said if the Court please, than in the first Joliet Contractor's case. At page --
William J. Brennan, Jr.: Which what --
Charles B. Mahin: Joliet Contractors.
William J. Brennan, Jr.: Yes.
Charles B. Mahin: The case in 51. The Board reasoning ignores the fact that the real effect of a secondary boycott in the building and construction industry is the stoppage of the flow of building materials from the manufacturer to the dealer and to the contractor. And it's that curtain effect that we're talking about in this embargo thing. Now in conclusion, we want to invite the Court's attention to the briefs of the amici here and explain that we agree with them as to the very serious economic effects on the public interest if these boycott immunities, these whole city boycotts are going to be permitted to continue in this country. And I'd like to reserve the rest of my time if I may.
Earl Warren: You may.
Charles B. Mahin: Thank you sir.
William O. Douglas: Do you agree with the counsel? You said you agreed with the very sneaky view, you agree with the brief of the American Federation of Labor.
Charles B. Mahin: Your Honor has a point, I do not.
Earl Warren: Thank you. Mr. Manoli.
Dominick L. Manoli: May it please the Court. I believe it might be a bit helpful if I supplemented a little bit Mr. Mahin's statement of the facts in this case. This Rule 17 of which it speaks in case there's any confusion on part of anyone, it is part of an agreement. At first it lost it sounds like some union rule but it's really a part of a collective bargaining agreement between a group of contractors in the Metropolitan New York or Metropolitan Philadelphia area which -- who are represented by an association, an agreement between them and the district council which is at fully aid with the carpenters.
Byron R. White: It's also a union rule, wasn't it?
Dominick L. Manoli: Pardon?
Byron R. White: You wouldn't suggest that this is a union rule also.
Dominick L. Manoli: Oh! It is a union rule but its part of the contract, its part of the contract. And I think it's important that we should clarify -- clarify that. Now, there were originally in this case that were involved four contractors on behalf of whom charges had been filed or who are interested in the charges. Three of these contractors here had been given certain jobs, and on those jobs, their specifications called for pre-fitted doors. The fourth contractor Frouge, he was great, he wasn't required under his specifications to use only pre-fitted -- pre-fitted doors. Now, of course he was party to this arrangement of this Rule 17. Now, when pre-fitted doors were brought to these various contractors, the Union relying upon its contract provisions directed these employees who work for these four contractors here not to install those doors. Charges were filed alleging that the agreement or shall I say Rule 17, that the agreement was an 8 (e) agreement and also an 8 (b) (4) (B) charges -- 8 (b) (4) (A) charge and 8 (b) (4) (B), the 8 (b) (4) (A) was that the Union by directing the member -- the employees of these particular contractors not to handle these doors at engaging conduct to obtain or to enforce an 8 (e) agreement. The 8 (b) (4) (B) charge was that the Union by engaging in that kind of conduct had -- had engaged in secondary strike activity against these various contractors in violation of 8 (b) (4) (B).
Potter Stewart: Now the -- the charging parties were the manufacturers of the prefabricated doors?
Dominick L. Manoli: Yes, they were. Now, when the case came to the Board, the Board found that the agreement was lawful. It was not prohibited by 8 (e) and of course the 8 (b) (4) (A) probably by the way side. Now, with respect to the 8 (b) (4) (B), the Board found that with respect to Frouge who had control over the choice of doors that there was no violation. Not only in view of the fact that he had control over that item, but in view of all the other surroundings circumstances to the case. The fact that the --
William J. Brennan, Jr.: Or by controlling an industry note, it -- he could use prefabricated doors or not.
Dominick L. Manoli: Yes.
William J. Brennan, Jr.: That's what you meant by control. He had a choice.
Dominick L. Manoli: He had a choice.
William J. Brennan, Jr.: And therefore the Union in insisting he live up to the agreement was putting pressure on him --
Dominick L. Manoli: Right.
William J. Brennan, Jr.: To make a choice that he was agreeably to make under the contract --
Dominick L. Manoli: With the project owners.
William J. Brennan, Jr.: Yes.
Dominick L. Manoli: Correct.
Potter Stewart: But soon as far as the charging parties go, the manufacturers of the prefabricated doors, what possible difference could it make in either event their product have been boycotted in the Philadelphia area?
Dominick L. Manoli: Well Your Honor, it was boycotted in the sense and I'll come to that later on in the argument --
Potter Stewart: Oh, you keep out of then.
Dominick L. Manoli: But I think we have to talk -- we have -- we have to answer the question, why the boycott? Why the boycott, if we're going to use that loose word.
Potter Stewart: Yes. But despite that at the moment just --
Dominick L. Manoli: Yes --
Potter Stewart: -- and I think they simply know if they made any difference at all to the charging parties --
Dominick L. Manoli: It probably did not make any difference, they couldn't sell --
Potter Stewart: -- was there not, Mr. Frouge was -- had control or didn't have control.
Dominick L. Manoli: They couldn't sell their pre-fitted doors --
Potter Stewart: And so it's the extent of the impact upon the charging parties was the same both in the case --
Dominick L. Manoli: Yes.
Potter Stewart: -- and the three other contractors and Mr. Frouge.
Dominick L. Manoli: That's right. But the element of control plus the other considerations is important in determining whether this is a primary or secondary agreement and as I shall discuss later on Section 8 (e) deals only with secondary agreements. Now, to just round out the story a little bit about what the Board and what the lower court did here, with respect to the three other contractors who under the specifications were required to use the pre-fitted doors, the Board found that they no longer had control of the situation. The -- the use of the doors, the kind of doors that were going to be use that was a choice made by the owners of the project. So there the Board said, because this --
William J. Brennan, Jr.: Well, that wasn't that voice, you said it's a choice. That was a condition he imposed.
Dominick L. Manoli: Yes it was, he didn't have to work --
William J. Brennan, Jr.: On the contract, they didn't have gotten the contract except -- except to that petition.
Dominick L. Manoli: Exactly. In the sense he didn't -- he didn't have the work, and so the Board says that since he does no longer has the work, then the target of the Union's action is really the project owner, to compel the project owner in order to change the specification.
William J. Brennan, Jr.: Which is in 8 (b) (4) violation?
Dominick L. Manoli: And the Board filed that that was an 8 (b) (4) (B). Now --
Byron R. White: Well Man -- Manoli, I think if the Board did say then that the contractor cited Rule 17 which free to bid on jobs and to accept jobs which require the use of prefab doors.
Dominick L. Manoli: He was free -- under his agreement, under his agreement however, he was required to save the work of fitting these doors to his employee.
Byron R. White: Oh I know, but I -- I don't see how they could have ruled on the fourth case the way they did without saying the contract is completely free to bid on jobs that requires -- that require prefab doors to be used.
Dominick L. Manoli: But he -- if he was free --
Byron R. White: And he could -- he could -- that he could arrange all of his jobs that way.
Dominick L. Manoli: I'm not sure that I fully appreciate that. I understand the question Your Honor.
Byron R. White: That's all.
Dominick L. Manoli: But -- are we speaking of --
William J. Brennan, Jr.: In other words -- in other words, although he had a contract with the Union which included with -- this Rule 17 --
Dominick L. Manoli: Yes.
William J. Brennan, Jr.: -- that nothing about that provision in Rule 17, prevented him -- prevented him from bidding for and accepting jobs with project owners who insisted up -- as a condition of giving him the contract that he use only prefabricated doors.
Dominick L. Manoli: That contract provision did not bar him from bidding upon that thought.
William J. Brennan, Jr.: I think that suppose --
Dominick L. Manoli: But he had a certain obligations flowing under this particular Rule 17 to his employees. Namely, that in a sense -- if I may use the word that he would not subcontract the work of finishing the doors.
William J. Brennan, Jr.: Well that -- that -- what really it must come down to this judgment that he was free to preclude himself, to preclude himself from having his employees complete the fitting and so forth if he wanted to make an agreement with the project owner that he would supply at the project owner's insistent prefabricated doors, is that right?
Dominick L. Manoli: He was -- he could have done but at the same time --
William J. Brennan, Jr.: Well but he did -- there's nothing about 17 that prevented him from doing it.
Dominick L. Manoli: But that's right. There was nothing in 17 that prevented --
William J. Brennan, Jr.: And it -- isn't it implicit in the Board's decision that there was nothing --
Dominick L. Manoli: Yes.
William J. Brennan, Jr.: -- about 17 which precluded him.
Dominick L. Manoli: That's right. Now, when the case came to the court below -- when the case came to the court below, the court below disagreed with the Board's finding that this agreement was not in violation of Section 8 (e). The court below found that the strike pressure, that the -- use and -- use refusal to install the doors for Frouge that that was permissible, not a violation of Section 8 (b) (4) (B). And thirdly -- thirdly, the Board found -- or the Court rather, the Court agreed with the Board -- it -- it agreed with the Board that the Union's refusal to install the doors for the contractors who were -- were under obligation to use the pre-fitted doors that that was a violation of the Act.
William J. Brennan, Jr.: And that's not been --
Dominick L. Manoli: Now, that part of the case is not here.
William J. Brennan, Jr.: That's out.
Dominick L. Manoli: The only part of the case we have is the 8 (e) agreement and the incident involving Frouge.
William J. Brennan, Jr.: I just like -- I know you get the -- much quite clear why we have the 8 (e) issue here as to those pre-contractors if they're satisfied with the holding of the 8 (b) (4) (B) violation extent.
Dominick L. Manoli: Well --
William J. Brennan, Jr.: You'll get to that, I suppose.
Dominick L. Manoli: Yes I will.
Potter Stewart: I don't know if you told us upon what ground the Board held, that this agree -- that -- that Rule 17 or the agreement in which where Rule 17 is incorporated did not violate 8 (e)?
Dominick L. Manoli: The Board holds that that Rule 17 is a work preservation primary type of agreement. And that 8 (e) is directed only to secondary agreements, agreements that in effect required an employer to cease doing business with another employer who is involved in a labor dispute or who is favored by the Union or who is non-union, and that this was not that kind of --
Potter Stewart: This was the Board's reasoning from the beginning?
Dominick L. Manoli: Yes, that's right. Now, the central question in the case of course is what kind of an agreement was Rule 17?
Potter Stewart: Just before we go, just on term on my --
Dominick L. Manoli: Yes sir.
Potter Stewart: The Board that rely on the final proviso of 8 (e) in other words, if it --
Dominick L. Manoli: That the Board says that the final proviso of 8 (e) has nothing to do with this case.
Potter Stewart: At all.
Dominick L. Manoli: That's right. Because this agreement --
Potter Stewart: That even if rule will not be --
Dominick L. Manoli: Does not fall within 8 (e) at all.
Potter Stewart: Yes.
Dominick L. Manoli: And since it does not fall within 8 (e) at all, the proviso does not come into play.
Potter Stewart: Right. And that's the Board's position from the beginning and continues to be.
Dominick L. Manoli: Yes sir.
Potter Stewart: With respect to the 8 (e) aspect.
Dominick L. Manoli: Yes. Now, they say Mr. -- if this agreement, if this agreement is a lawful agreement, it necessarily follows and it seems to us as the Board found, that the Union's refusal to install the doors at the Frouge -- at the Frouge project was not in violation of the statute. Mr. Mahin and I, we are accord or shall I say the Board and Mr. Mahin are in accord, that Section 8 (b) (4) (B) and Section 8 (e) are complementary and that the basic thrust in the reach of the two provisions of the statute is the sa -- is the same. We're also in accord that Section 8 (e) read literally -- Mr. Justice Brennan, I supposed is puzzled, I'd explain it.
William J. Brennan, Jr.: Well, it's the word complementary.
Dominick L. Manoli: I haven't given a word.
William J. Brennan, Jr.: Alright.
Dominick L. Manoli: The -- Mr. Mahin and I were -- were also in agreement that if you construe Section 8 (e) literally, it would outlaw the Rule 17 here because in effect the Rule 17 here bars this employer from -- from -- as a practical matter from purchasing door or pre-fitted doors.
Potter Stewart: That is -- but then, the proviso of 8 (e) might again accept this particular provision --
Dominick L. Manoli: If it falls within.
Potter Stewart: Right. But you're saying (Voice Overlap) it read literally it does fall within.
Dominick L. Manoli: Literally yes, right. Now our --
Potter Stewart: That's what I thought you were just telling us.
Dominick L. Manoli: Yes, that's right. Now, our difference is, the question then would be whether what part of the proviso -- Yes.
Dominick L. Manoli: -- control, that's quite right, Your Honor.
Potter Stewart: Yes.
Dominick L. Manoli: Now, our differences here of course stem from the fact that we view the basic reach and thrust of the two provisions differently and we are also in disagreement as to the character of the agreement that is involved in this particular case. Now, basically Mr. Mahin's argument it seems to me seems to come down to this. That the 80th Congress which adopted Section 8 (b) (4) (A) which is now Section 8 (b) (4) (B) of the current -- of the sta -- of the statute. At the 80th Congress here prohibited all refusals, all employee refusals by employee to handle or use the products of another employer. And with these premises of foundation, the argument concludes that the 86th Congress in 1959 which was bent on foreclosing loopholes in the statute certainly does not intend to create anything were non-existent and that it did not intend to permit a circumvention, a circumvention of the prohibition against secondary boycotts by agreements which would require an employer to cease doing business with another or to refrain from using these projects. Now, I want to address myself initially to the argument. The argument that Section 8 (b) (4) (B) bans all employer refusals to handle the products of another employer and that therefore, when the Union directed the employees of Frouge not to handle the pre-fitted doors it committed a violation of Section 8 (b) (4) (B). The weakness of the argument, the weakness of the argument is that it places an unwarranted reliance upon the literal language of Section 8 (b) (4) (B), an approach which this Court rejected in 1951 in the International Rice Milling and rejected again in General Electric case in 1961, and if that approach were to be followed, it would mean that primary strike activity which necessarily tends to disrupt the activity -- they have been to these relations of the struck employer that primary struck -- strike activity would be unlawful. But this Court on of at least two occasions has refused to countenance that kind of an approach of the statute and in addition to that, Congress in 1959 when it added the primary, secondary proviso to the 8 (b) (4) (B) provision of the Act unmistakably, unmistakably precluded such a reading of Section 8 (b) (4) (B). Now, in the Denver Building case which has won the first cases that came here after the Taft-Hartley, this Court told us that the congressional policy which is embedded, which is embedded in Section 8 (b) (4) (B) is the dual congressional policy of preserving to the employees the right to exert pressure upon in offending employer and to be involved in a primary dispute and of shielding, shielding and not offending employer from pressures and controversies not his own.
Potter Stewart: Was a -- out of the public interest, is the public?
Dominick L. Manoli: And the public too that's right. Now, Section 8 (b) (4) (B) as this Court has said and again on two occasions and as the legislative history of the 194 -- 1947 Amendments unmistakably indicates, was directed on what it is called the secondary boycott again in the language of this Court who sanctions bear not upon the offending employer who is -- who alone is involved in the dispute but upon some third party who has no concern. The practice against which 8 (b) (4) (B) was directed as the conference report on the Taft-Hartley amendments makes clear, was the practice of a union calling a strike or engaging in a work stoppage at employer A, in order to compel employer A to cease doing business with employer B who is either non-union, was involved in a labor dispute or was disfavored for some other reason by -- by the union.
Potter Stewart: So you're not talking about 8 (b) (4) (B), you're talking about the -- about 8 (b) (4) (A) under the Taft-Hartley Act, aren't you? Which is now become B under the 1979 Amendment.
Dominick L. Manoli: Yes, I indicated that earlier that 8 (b) (4) (A) had become 8 (b) (4) (B) --
Potter Stewart: Now when you tell them that 8 (b) (4) (B), it sounds like you're talking about the law since the 9 -- since 1959 and you're talking about the law prior to that.
Dominick L. Manoli: I thought perhaps I would not be confused if I use 8 (b) (4) (B) having indicated that that really is the same at 8 (b) (4) (A).
Potter Stewart: You're talking about now that the law --
Dominick L. Manoli: I'm talking about 8 (b) (4) (A) --
Potter Stewart: The 1947 law.
Dominick L. Manoli: -- that's correct.
Potter Stewart: The 1947 Amendment.
Dominick L. Manoli: That's correct. If I inadvertently say B, what I'm talking about in this phase, what I mean 8 (b) (4) (A) -- 8 (b) (4) (A). Now, Mr. Mahin -- Mr. Mahin in his brief, he acknowledges that this example was a stock example that was used by the proponents of Section 8 (b) (4) (A) as the ter -- as indicating, demonstrating the scope and the reach of that provision. Now, Mr. Mahin would seek to persuade us however that these illustrations here, that these examples were intended to be merely illustrative and not intended to be exclu -- exclusive. And that Congress meant to reach what he calls boycott action, even though -- even though such action, and again as he puts it, does not fit into the stock definition of a secondary boycott. The --
Earl Warren: Are you going into the new matter?
Dominick L. Manoli: No Your Honor, just one -- one sentence and I'll be through.
Earl Warren: Yes, alright.
Dominick L. Manoli: Now, I think that in connection with that it is where they're called the language of this Court in the Sand Door work said, Congress' purpose was more narrowly conceived, it aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread and as Congress evidently judge dangerous practice of the Union to widen that conflict. The coercion of neutral employers themselves not concerned with their primary dispute through the inducement of their employees to engage in strikes or concerted refusals to handle goods.
Earl Warren: We'll recess now.