Earl Warren: Mr. Harris, you may proceed.
Crampton Harris: In order to get the full force in effect of the Arkansas decision, it seems to me if we should consider for a few moments the National Labor Relation Act and how it has been construed by the federal courts. That Act regardless of how men may differ as to its economic philosophy was unquestionly -- unquestionably a long considered bit of legislation. To my mind it is precision legislation. It seems to me that Congress knew exactly what they wanted to do and carefully proceeded to do it or to try to do it and its important to note that the Congress at no place put in a requirement that a union must comply or file the documents specified in 9 (f), (g) and (h) in order to have the right of representation. There is as I see it no legal compulsion on a labor union to file those documents. They had an option. It seems to me that the draftsman on the part of the Senate, the sponsor on the part of the Senate who had mathematics for recreation followed the example of some of the great mathematicians. When you have a great deal of trouble proving something approaching it from one direction start over again and approach it from the opposite direction. And the Labor Management Relations Act is not a law drawn on compulsions, it did make it unlawful from the failure to file. It didn't deprive him of any right of representation. Instead of making it compulsory the statute is framed on an inducement basis. A man isn't compelled to file a non-communist affidavit, a labor union is not compelled to file its financial reports. The perversions in the law are that if he does not, if they are not filed no investigation will be made by the Board and they will not process a complaint made by a union that didn't file those papers. No forfeiture of any basic protected right under the Act. It's merely a denial of processes. The -- you might call it as some of the cases have done a series of benefits and determents. But it seems to me that the men framing it avoided constitutional questions by treating everybody alike. Anybody that wants to come in and get the benefit of the processes of the Board can get him by filing those papers. If he doesn't file the papers, if the union doesn't file them there's no penalty, there's no fine, there is forfeiture in the Act. The -- as a matter of fact the way the Act is worded, you can look at it from the opposite direction that 9 (f), (g) and (h) are limitations on the jurisdiction of the National Labor Relations Board. They set up this machinery, the Congress sets it up and says you can do certain things but here are two things that you can't do under certain circumstances. So when Congress fail to take make certification a condition precedent, I say that that was not accidental. I think every phrase in that law requires careful study. Now what Louisiana did, it comes along by this opinion, this ad hoc decision and adds a requirement to the right of representation which the federal law does not impose. Louisiana says since you cannot be certified, you cannot exercise your right protected by 13 of the Act to strike. Since you can't be certified and I am not recognized you can't compel anything. Now if they can come along and add by judicial decision a requirement of certification prior to representation, then the Supreme Court of Louisiana has amended the act of Congress in a basic point, on a basic theme and we see that under the decisions of this Court, the Garner case and the Weber case, said, we have a clearcut declaration of federal policy. The Federal Government has declared certain things to be an unfair labor practice. If it's an unfair labor practice a state cannot either by decision or by statute invade upon the province outlined and delineated by Congress for this great administrative board. To us it seems as if Congress having entered the field and having said we proscribe certain types of strikes that as indicated in a paragraph in the Garner case and referred to again in the Weber case that Congress having entered this field and having proscribed certain types of strikes would seem to imply that other kinds of strikes are permitted. Well now if we are going to have a complicated mechanism of solving the infinite number of problems that will arise in American Labor Relations, a machinery carefully set up by the Congress and then one state can come in and say we will put a requirement of certification in and another state would come in and say as they did down there, peaceful picketing. No matter what kind of picketing it was peaceful picketing for the purpose of getting recognition from the employer is unlawful. Well if it's protected by the Federal Act it's protected against state intrusion. The -- the question of peaceful picketing, the cases of Hanker and Gazzam, those cases were not as I read cases involving a right protected by the Labor Management Relations Act. The -- they discussed picketing and differentiated picketing from being the exact equivalent of free speech. But if the picketing is in a perfectly peaceful manner and if its for a lawful object then it is protected by the Labor Management Relations Act and being protected the state can't prohibit it. As they argue in the -- this Court asked the Solicitor General to file a brief and it does matter according to the opinion of the Solicitor General as written in their brief of whether or not they had certification if they are exercising a protected right, if it's into the field which has been preempted by Congress, then they say that even picketing by a minority would be protected. In answer to your question Mr. Justice Burton about the majority, there was never in a question of fact on whether or not the union had a majority. They -- they didn't refuse to deal with him because they had no majority. They weren't even willing to find out if they had a majority.
Harold Burton: Well, the point that I had in mind particularly here is a suit being brought in Louisiana. Now, if one of the allegations is that there is picketing where there was only a minority, that seemed to be a matter that would be within the jurisdiction of the National Labor Relations Board, therefore the Louisiana case would be out.
Crampton Harris: That's right.
Harold Burton: Now -- and you're arguing that even though they had a majority it's also within the National Labor Relation Board and they're out again.
Crampton Harris: That's right.
Harold Burton: But I would think they'd clearly be out in the first instance where they are picketing for a -- for a minority because that's squarely comes under the National Labor Relations Board, doesn't it?
Crampton Harris: That would be bringing employer coercion on the -- through a labor union to influence these other employees to join the union.And that would be covered and they charge in paragraph 10.
Harold Burton: That's what I am referring to.
Crampton Harris: They charge what amounts to an unfair labor practice and Mr. McCain in framing his defenses from the very beginning, the first thing he did in his exception ratione materiae -- ratione materiae was to say that this was covered, his exceptions to the jurisdiction, it was an exclusive jurisdiction of the Labor Management Relations Act. Then when he came to his return to the rule in his answer he added the additional averment that it was not only in the exclusive jurisdiction of the National Labor Relations Act but he also added to the averment that it was protected by the First and Fourteenth Amendment. And so far as we've been able to find, no case has presented this question as clearly and succinctly as the facts of this case presented to this Court today.
Harold Burton: Does the National Labor Relations Board have some jurisdiction here?
Crampton Harris: In -- in this case?
Harold Burton: Yes.
Crampton Harris: Why, the National Labor Relations Board would have jurisdiction if they file, either party for instance the District 50 couldn't file a petition with him. But the employer if he were in any doubt could file a petition and go before the National Labor Relations Board. Further, we are in compliance with 9 (f), (g) and (h) or not, if we are guilty of an unfair labor practice.
Harold Burton: You may assert that before the labor board.
Crampton Harris: Yes, sir. And not only they may assert it.
Harold Burton: Is it your position that they must assert it under Weber and Garner? What's asserted for the Labor Board under Weber and Garner?
Crampton Harris: Yes. I think it is, Your Honor. They can't -- they can't get -- a state court is not the proper court to try questions of unfair labor practice. This complicated mechanism with a general counsel responsible for filing the complaints with the Board separated from the trial examiners, with the Board made more judicial body, that is a complete system for the solution of labor problems by men who are presumably expert and they certainly have jurisdiction and if -- whether a union is in compliance or not they can order them to cease and desist from the unfair labor practices and if they don't they can go before the court under the procedures prescribed by the Act. So we see that Louisiana has trespassed upon the law, it's added an amendment to an act of Congress and it has deprived the Labor Board of jurisdiction and so far as the record showed they never made any effort to see the Labor Board about anything.
Harold Burton: What -- what has become of the provision for the appropriate unit to select a bargaining agent?
Crampton Harris: There isn't any question of an appropriate unit in this case. The case has been tried --
Harold Burton: From what's in my mind and it used to be in the Wagner Act that the appropriate unit would be designated by the Board. Now, that's been changed as I understand it in the National -- in the Taft-Hartley amendments?
Crampton Harris: No, I -- I --
Harold Burton: (Voice Overlap) 9 (a) is no longer reads as it used to. Now, that doesn't -- do anything to it at all?
Crampton Harris: No. There's never been any question but what these men would organize in an appropriate unit. It's never raised in the lower court. It's never raised by the Supreme Court of Louisiana and the evidence in the case shows that these were plant employees and if they were not -- none of the men who signed the cards were clerical or other employees. There were a 174 and at the trail 179 of the 225 plant employees. We have no question of an appropriate unit.
Harold Burton: But it used to be that selection would have to be made an appropriate unit.
Crampton Harris: I was under the impression that Labor Board had the power to decide where it was an appropriate unit or not. I -- I thought they still have that.
Harold Burton: (Voice Overlap)
Crampton Harris: Am I wrong about it?
Harold Burton: Especially 9 (a) doesn't read that way.
Crampton Harris: It has been suggested by my colleague Mr. Cowherd that it -- we made a contract with an employee and we were outside the appropriate unit our contract would not be a bar or a protection to it. Apparently that is -- that's the only limitation and I defer it to his far greater experience on -- in this line of litigation than my own. Thank you.
Earl Warren: Mr. Pitts.
John L. Pitts: If the Court please. I am going to have to be more specific in the discussion of the sections of the Labor Relations or the Labor Management Relations Act and Mr. Harris. The union in this case is District 50 of the United Mine Workers. This is a union which has deliberately and as a matter of policy refused to comply with Sections 9 (f), (g) and (h) of the Labor Management Relations Act. It was not admittedly inadvertently or temporarily out of compliance. That is a studied union policy in this case. Now, if Your Honors please, that's the gravamen of this case in the light of the interpretation of the effective -- the action of this union under the Labor Management Relations Act. Now, here is what happened. A representative of the union called upon the employer and says we want representation. We want to be recognized. The Company was familiar with the fact that this District 50 was a non-complying union that it had failed to comply with the sections of the Act which require the execution of the non-communist oath and the filing of the financial data giving the disclosure to the proper authorities of the -- disclose your financial information dues and things of that type to union members. Now, the employer in this case stated that the Board does not recognize you and for that reason we will not deal with you and we will not bargain with you. Now, the employer here feels that if it had agreed to bargain and deal with this union it would have given up certain substantial rights which it has under the Labor Management Relations Act. In the first place, if this were a complying union that had made that demand the employer could have said, "Well now we do not accept your protestation of majority status. You see that you represent a majority but we wish to have a board supervised secret election." As one of things that was kept -- would have been taken away from us if we had volunteer to recognize this union. Now, if Your Honor's please --
Earl Warren: Why do say that would be taken away from you?
John L. Pitts: If Your Honor please, the Board itself has held that it will not entertain a petition for an election even as to the employer. Now, it's obvious that the union could not go before the Board because it has not complied and that all the Board processes were denied to this union, and the Board is likewise held that we could not go with the Board under those circumstances and petition for an election. And the reasoning is this, if the Board found that the union did have a majority, the union on under such circumstances would be indirectly getting the benefit of the processes of the Board. Now I have cited the several cases which the Board quotes that in the brief and that was one of the material things it was commented upon by the Louisiana Supreme Court.
Speaker: What -- what section? Is that a section of the Act? What was that?
John L. Pitts: Your Honor, that's not a -- that's not a Section of the Act, that's a judicial interpretation --
Speaker: How -- how do you --
John L. Pitts: -- by the Board.
Speaker: How do you -- do you object to the representative of the Board saying that (Inaudible) they have -- don't they have to go to the Board then?
John L. Pitts: No, sir. We could not go to the Board. That is one of the -- one of the things we have been denied under the Act. Now, that seems clear. Now, the obvious answer to that is that the brief filed by the Board in this case did not even intimate it. We could have gone to the Board and obtained an election and of course the Board has so held.
Earl Warren: Well, did the Board base that upon a specific Section of the Labor Relations Act or what?
John L. Pitts: No. It just -- it based it under Section -- on Sections 9 (g) and (h), (f), (g), and (h) which denied the services of the Board and the processes of the Board to any non-complying union. And they say even if the employer is the one who asks for the election, we won't call it an election because if we finally decide that the union wins, we are indirectly defeating the purpose of the Act in giving the result of the election. And -- and they say further that if they should find, if they should hold an election and find that the union was successful and had a majority, they couldn't certify them because that is denied under the Act. So that's one of the first things, there are several other disadvantages that we have given up on. I'm seeing at the outset the reasons why we object dealing with a non-complying union. Now, if Your Honors please, that's the -- that's the flat proposition that we have before this Court, whether we have to deal with -- and bargain with this non-complying union. Now I say this, if -- if we refuse to bargain with this union and Your Honors overrule the state court decision and let them put a picket line back, we still do not legally have to bargain with them because they can't go out before the Board and compel us to bargain with them. That's obviously an unfair labor practice to refuse them -- to refuse to bargain. So that the Board was -- is the only agency that have a right to hear that question. But they have -- whoever shut them off, seals off, from any possible Board relief by refusing to comply with this Act. Incidentally --
Speaker: What -- what about 9 (c) -- 9 (c) of the Act? Whenever a petition shall have been filed, according to such regulation it'd be described by the Board by an employer alleging that one or more individuals or labor organizations had presented to him a claim to be recognized, the Board shall investigate and so forth.
John L. Pitts: Well, Your Honor under that Section, the Board had repeatedly held that it will not entertain an election on the -- at the request of the employer. It's obviously to inflict -- that the union under such circumstances did not go before the Board because they can't go before the Board under any circumstance. But the Board has held and construe in that Section that it does not have to -- it will not call an election even at the behest of the employer. Now, the question --
Speaker: They might not call it, but they have to decide it, where do you discuss that?
John L. Pitts: Of course the statute Your Honor states that it will not hold the -- would not hold the election on a request of the labor organization, would the holdings of the Board are to the same effect with reference to the petition by the employer. I'll find it for Your Honors in one moment. I -- I'll pass to -- to the --
Speaker: What -- what are you looking for?
John L. Pitts: I was looking for the Board case --
Speaker: A case.
John L. Pitts: -- to give Your Honor a reference to the Board case --
Speaker: Yes.
John L. Pitts: -- which expressly holds that an election will not be called where a non-complying union is involved. Now, they had so here.
Speaker: Well, I -- that wasn't the question that I asked you.
John L. Pitts: What -- what was it?
Speaker: Why couldn't you go to the Board and ask the Board in regard to whether you have to listen to his particular organization?
John L. Pitts: Well, that's -- that's the case. I understand if we could -- all we could do would be ask one election in certification. Now, that is what the Board says it will not do where the non-complying union would obtain it --
Speaker: Oh, I don't understand that well. They say --
John L. Pitts: -- the benefit of --
Speaker: -- that they wouldn't do that but if they said that they would not require you to bargain here then that's a decision by the Board on that question.
John L. Pitts: Well, that's -- that's --
Speaker: You petitioned the Board so that (Voice Overlap) --
John L. Pitts: That's -- that's the Act itself which prevents the -- in other words if we refuse to bargain then the one to go before the Board would be the union and it cannot go before the Board on that -- or any other matter.
Speaker: But 9 (c) (1) (B) reads by an employer, alleging that one or more individuals can present to him a claim to be recognized as a representative. (Inaudible) Section 9 (a), the Board shall investigate certain petitions.
John L. Pitts: If Your Honor please, here is the case which I have in mind is Herman Loewenstein, Incorporated reported in 75 N. L. R. B. That's on the appendix, page 27 of the respondent's brief. Now, they have gone in that case, they say this, although it is the employer's petition in a Circuit case, and so on the next page 28, it sets the Board's machinery in motion. It is an individuals or a labor organization's initial claim for recognition that makes it possible for the employer to invoke that machine. And it goes on to say that under the circumstances they will refuse even the employer any relief under the Act. Now, so if the Court please, it seems to me that the question before the Court here is whether primary picketing by a non-complying union is either prohibited by the management Labor Relations Act or whether it is as an unfair labor practice or whether it is a fully protected right under the Act. Now certain practices are enumerated in the Act as unfair labor practices. These are coercion of employees, coercion of an employer in selecting his negotiator, a union refusal to bargain, a secondary board cut and things of that type, finally they wind up with (Inaudible). It is obviously not any one of these things. It is not an unfair labor practice. Now, if this were an unfair labor practice under the Act, we could go before the Board. But it clearly is not and I think the strongest proof or intimation that it is not an unfair labor practice is there is no intimation whatever in the Board's brief that it is an unfair labor practice. And the Board has held on a number of occasions that primary picketing for recognition by such a union is not an unfair labor practice and so the Board would not act on that ground. Now, of course as this Court has said if it weren't an unfair labor practice, you would have a direct conflict between the Board and the state courts. And in that case we would have an easy decision to the effect that the state courts had no jurisdiction. So to pass from the unfair labor practice or easy phase of the case, we come to the cloudy or penumbral area as it had been referred to by this Court. And parenthetically when I was attempting to reconcile the various state board, labor board and Federal Court of Appeal decisions, why, I could progressively appreciate the meaning of that word, penumbra, and I always had to come back to what I consider as a -- the (Inaudible) landmark cases regulating labor relations by this Court. One of the cases like this is the --
Earl Warren: Well, Mr. -- Mr. Pitts, you mentioned a little while ago that there were several situations in which the employers such as you are now would have to give up something if the contrary was found. Now, will you enumerate those please, you gave us that one but I --
John L. Pitts: Yes, yes, sir.
Earl Warren: -- I didn't hear the others.
John L. Pitts: Your Honor, I intended to cover that up, but I'll happy to put them in this position. Maybe I should have done that first. I just didn't have them (Voice Overlap) --
Earl Warren: Well, if you -- if you're going to get to it later, that's all right.
John L. Pitts: I'll do it right now, I'll be happy to. The first was that we were deprived of the right to avoid supervised election. That's the one that I mentioned. In other words we regard that as being a substantial right that in which the employer is protected under the Act. In other words we don't believe that we have to accept the union's efforts, the Act provides for election , the hearing by the Board and we say that we're entitled to that regardless of whether they say they have a majority or no. Now the next -- incidentally the Board has so held that we are entitled to that under those circumstances, I'll mention that case later. The second point --
Felix Frankfurter: Is there anyway by which -- is there anyway by which you can get a ruling from the Board on whether or not as you or do not have a majority under the appropriate --
John L. Pitts: There is not Your Honor. The only way is to petition for an election and certification. And that has been denied to us, not for many things that we did but because the union has failed to comply with 9 (f), (g) and (h).
Felix Frankfurter: In another words, the Board -- the Board has ruled if it has been on from what you say.
John L. Pitts: Yes, sir.
Felix Frankfurter: But not merely the union can go before it to compel it under the -- an election and the resulting certification to have the votes. But you can't go before the Board and say we are ready recognize this union if they have a majority of the votes. We are not satisfied that they do have it. We disagree with the showing made for one reason or another. And we would like to make an election. It's me you're asking and not the union, you don't have to give them any favor or disregard the statute, is that your contention?
John L. Pitts: Your Honor has cite it up perfectly. That's the direct holding of the Herman Loewenstein case and that's what the Board -- the Board has held. In other words --
Speaker: When you take the position as you do in that paragraph 10 that is referred to of your petition in the Louisiana court, that the union is picketing without having a majority then you assert that they don't have a majority, then you do bring into -- under the Board, under those circumstances, don't you? That is the kind of a thing the Board can take jurisdiction of.
John L. Pitts: If Your Honor please, in the pleading we've alleged, we doubted whether they had a majority representation and that of course --
Speaker: Was that -- was -- without having selected the representative I think.
John L. Pitts: Yes. And we still doubt, I mean and we see that we do not -- we do not have to accept the union's version of whether it has a majority.
Speaker: Well, if that is so, why, then the National Labor Relations Board would have jurisdiction and they are picketing under those circumstances, wouldn't they because that is the -- an unfair practice for a labor union to picket for recognition when they don't have even the majority.
John L. Pitts: No, sir. I don't believe that is true. I don't believe that's an unfair labor practice.
Speaker: That's coercing, isn't it?
John L. Pitts: Sir?
Speaker: That's coercing the employer to coerce his employees in violation of their freedom of choice to come into union when they haven't got a majority to represent them.
John L. Pitts: I don't believe that it is -- I don't believe that's an unfair labor practice under the Act and I don't believe it's so held.
Speaker: Well, it's an intrusion upon the freedom of the other employees.
John L. Pitts: I do -- the -- the Board has held that a primary strike for that purpose is not an unfair labor practice. In fact they hold that if it's admittedly a minority union, that's not an unfair labor practice.
Speaker: Well it's unfair labor practice to refuse to bargain with the bargaining agent, is it?
John L. Pitts: It's an unfair labor practice to refuse to bargain with the legally constituted representative, yes, Your Honor, there's no question about that.
Felix Frankfurter: Well, the Board says that an employer does not have to have the union -- doesn't have to have a certification in order to say or in order to be -- to conclude that this is a majority and therefore they represent the whole body of workers, you agree to that, don't you?
John L. Pitts: If Your Honor please, --
Felix Frankfurter: It doesn't --
John L. Pitts: -- in a latest expression of the Board, the Sunset Lumber Products case, the Board -- that was decided last year in the year 1955, the Board held that when an employer is faced with the demand for recognition by labor organization, at page 31 in my brief, which claimed to represent a majority of his employees, he may refuse to rely upon evidence of the union's representation and insist upon the union establishing its majority in a board election. Now it's true that the employer must act in good faith under those circumstances. The -- the Board has held that if that is merely a subterfuge and if the employer is not bonafide in asserting it decided to deal with a recognized and certified union and that's an effort though such as in the Pecheur Lozenge which has been cited in the Joy Silk Mills case. They say that if the employer is in good faith and he starts of by saying he wants to deal only with a recognized union, he is entitled to the election. Now to get back to Your Honor's question about what the other advantages are for us to deal with a complying union or a certified union rather than a non-complying union such as this, apart from the question of -- the advantage of being able to get a board election, we would be free from labor disturbances because if we contracted with this non-complying union, any other union could come in and fix and we'd have no Board relief. And yet if this was a certified union that would be an unfair labor practice where this other union had come in and picket us while we have a contract with a certified union. Now that's an advantage to the employer, a very definite advantage which we say we're entitled to under the Act. In other words the status of the permits of a recognized certified union. Now --
Earl Warren: It won't have to get a majority of the employees, wouldn't they, the other union?
John L. Pitts: Wouldn't -- if Your Honor -- if Your Honor please, what we're talking about is a picket line. We don't want the picket line. In other words even if we -- even if we are dealing that they could not get representation until they -- until they did get a majority, but had nothing -- there would be nothing to keep us -- keep them from picketing if we had a contract with a non complying union. Now, that would be one of the injustice.
Earl Warren: Now, where -- where do you find authority in the Act for that, what language do you point to?
John L. Pitts: 8 (b) (4) (C).
Earl Warren: 8 (b) (4) (C). Where is that quoted? Is that on page 47?
John L. Pitts: Yes.
Earl Warren: Of your brief?
John L. Pitts: Yes. Enforce states to engage in, or induce, or encourage the employees and so forth and down 9 (c), forcing or requiring any employer to recognize or bargain with a particular labor organization as a representative of his employer is, if another labor organization has been certified as the representative of such employees on this page of Section 9.
Earl Warren: Well, that wouldn't be the situation here, it wouldn't be certified, would it?
John L. Pitts: Well -- well, of course as I understand that -- that makes it an unlabor -- unfair labor practice to picket against a certified union. Where we interpret those provision is that if we contract with the United Mine Workers any other union could picket us during the term of that contract and we'd have no Board relief. If it was a certified union we would have Board relief.
Earl Warren: Well, in this case the -- the attempt was not made -- is not here to make you enter into a contract, is it?
John L. Pitts: Yes, Your Honor. The bargaining --
Earl Warren: (Inaudible) recognized --
John L. Pitts: Recognized and that leads to a contract.
Earl Warren: And if you recognize the -- recognize the union but refuse to bargain with them for -- for any reason that you might choose that could be an unfair labor practice, couldn't it?
John L. Pitts: Yes.
Earl Warren: And that could go to the Board. You could then have a hearing, could you not, on the --
John L. Pitts: They could -- they couldn't --
Earl Warren: -- on the question of compliance.
John L. Pitts: They couldn't take it the Board Your Honor.
Earl Warren: I beg your pardon?
John L. Pitts: I mean the union could not take it as long as they were not in compliance. It couldn't get before the Board. We wouldn't bring a charge against ourselves for a plea or to bargain. That would have to be brought by the union. And they have --
Earl Warren: You can make the contract with the other union that you wanted to deal with if they had a majority of the employees and then if they interfered with you, you could take them before the Board, couldn't you?
John L. Pitts: That's true, yes, yes.
Earl Warren: I know but --
John L. Pitts: But that -- let's assume --
Earl Warren: (Voice Overlap)
John L. Pitts: Let's -- let's assume that the -- that the -- only certified union does have the majority for the purpose of argument and discussion. In that case the other picketing union could not get a majority, there is no way we could keep them from --
Earl Warren: Well, then that -- then you could --
John L. Pitts: -- continuing to picket.
Earl Warren: -- you could take them before the Board could you not as being -- for having commitment an unfair labor practice act.
John L. Pitts: As I --
Earl Warren: Unfair labor practice.
John L. Pitts: As I understand it, not, where the picketing is against a non-compliant union. I mean where you have a contract with the non-compliant union.
Earl Warren: Well, where -- where is the authority for that?
John L. Pitts: We have to approach it from this standpoint. We have to bring it within the realm of an unfair labor practice. If we stop the other union from picketing.
Earl Warren: Yes.
John L. Pitts: All right now, Section 8 (b) said it should be an unfair labor practice for a labor organization or its agents, I am going over to four in top of page 47 to engage in or to induce or encourage employees of any employer to engage in a strike. Now go down to C, now where the object there is, now go down to C, forcing or requiring any employer to recognize or bargain with a particular labor organization as a representative of his employees if another labor organization has been certified as a representative of such employees under the provisions of Section 9. In other words that's the only case where we have an unfair labor practice while you have another union picketing against us is where you have a -- where they're picketing against a certified union.
Felix Frankfurter: Mr. Pitts, (Inaudible)
Speaker: You don't to -- now, go right ahead. (Inaudible)
Felix Frankfurter: Mr. Pitts, speaking for myself, I think you're in a hard spot. If in good conscience, you're not satisfied they have a majority. I am assuming that that you are not satisfied that they have a majority, but you are ready to be satisfied by some of our (Inaudible) method of determination. Now you say you can't get that before the Board have said, they can't certify a non-confirming union, is that right?
John L. Pitts: That's correct.
Felix Frankfurter: That's about your position?
John L. Pitts: Yes, that's our position.
Felix Frankfurter: You will be in a different position if the Board in it's response, the Board has no (Inaudible)
John L. Pitts: That's correct, if we could -- if we could go before the Board and get a Board election that would eliminate that phase of our objection.
Felix Frankfurter: And I sent -- whether to report and then should study it -- that offhand, I am little troubled by a determination by the Board that because the union can't come before the Board, the employer can't come before it to make sure what his responsibility in the premises are.
John L. Pitts: Well, that apparently is a Board's position from which -- which it has never deviated from the very beginning.
Felix Frankfurter: That is the Board -- the Board (Inaudible)
Speaker: You didn't try to (Inaudible)
John L. Pitts: No, Your Honor, we did not.
Felix Frankfurter: Would you have anything to suggest?
John L. Pitts: That's correct, yes we have --
Felix Frankfurter: Don't have to assume the Board (Inaudible) like the other day?
John L. Pitts: No.
Sherman Minton: Does it have a case (Inaudible)
John L. Pitts: I don't know that I understand Your Honor's question. I -- I'd say this that there is no question involved in this case of any employee discrimination if that's what the question is leading to.
Felix Frankfurter: No, but that's -- if I may intervene. Justice Minton, I haven't looked that long, I'm taking your word for it, I have a way of taking the words of lawyers in case it stands for something and sometimes it's disappointing. I take your word that the Board has ruled that although a non-confirming union can't go before it and compel election that is also true of an employer no matter how much good faith he had, he can't go before the Board, so will it be holding an election to see the majority, is that right?
John L. Pitts: Yes, sir.
Felix Frankfurter: And you say that is the ruling of the Board.
John L. Pitts: That's what it -- that's what it has ruled, yes, sir. And up here.
Felix Frankfurter: And it doesn't (Inaudible) to see whether you went before the Board and ask to reconsider it, that's definitely --
John L. Pitts: No, we did not Your Honor. We did not go before the Board.
Felix Frankfurter: Not before the Board (Inaudible)
John L. Pitts: Yes, that was the situation, yes, that is how I understand it. That's what it was, exactly.
Hugo L. Black: What was the date of the decision?
John L. Pitts: What is that?
Hugo L. Black: What was the date of the decision?
Felix Frankfurter: Whatever 75, National Labor Relation Board, (Inaudible)
John L. Pitts: It was during --
Speaker: December 2nd, 1947.
John L. Pitts: It was -- it was after the 1947 --
Speaker: December 2nd --
John L. Pitts: -- Amendment, that's all I can say.
Felix Frankfurter: They must have based it on a constructive strategy as I take it.
John L. Pitts: Well, the reason that it was the policy of the Board is not to afford any -- any protection or services to a non-complying union and that if the -- even if the employer were the one that invoked the processes of the Board to have the election if it turned out that the labor union won the election, then in such case the Board would be depleting the purposes of the Act by permitting the union to get the indirect benefit which the Act did not intend it to have.
Speaker: Of course, it turned out that they didn't have a majority with the employer's win, the Board could give you relief without helping the -- the union.
John L. Pitts: Well, of course that's -- that's the question of the result of the -- of the election.
Felix Frankfurter: Well, -- well, evidently I haven't looked at the Government's brief (Inaudible) Evidently the Board's stand under that, on page 11, Footnote 4, the employer -- a union may not have to redress for the Board, normally it has some stages of exclusive representative verified by a Board certificate. The footnote says, this is so irrespective of whether the non-complying union is dealt by the representation petition, it is filed by the employer or the petition has been filed by a complying union and the non-complying union thereafter enter the -- in the proceeding. And if fact, the Lowenstein case, (Inaudible) at first the District Court, three-judge court, and determined by the Second -- by the Court of Appeals of the Second Circuit. Apparently that's the province the Board on its decision so that's established.
John L. Pitts: Yes.
Felix Frankfurter: It says, we -- it says in its brief, the employer has other means of ascertaining whether they've got a majority, that the employer has a doubt no matter how honest, it can't be established.
John L. Pitts: That's -- that's the Board's --
Felix Frankfurter: I don't understand --
John L. Pitts: -- ruling up to now.
Felix Frankfurter: (Inaudible)
John L. Pitts: If Your Honors please, I -- I believe that under these leading cases when this Court, Anheuser-Busch case and several cases recently discussed and acted upon by this Court that there is no absolute protection to an non-complying union to picket for recognition. Now in the Anheuser-Busch case Your Honors stated that the federal Act has not absorbed all state action and it pointed out in the Allen Bradley, that in the Allen Bradley case, Allen Bradley Local against Wisconsin Board the states were permitted to enjoin mass picketing and blocking of plant entrances and picketing at homes and that type. And in the International case of International Union against Wisconsin Board, the Court allowed a state injunction against the current wage stoppages, the current owner now for wage stoppages that had a tendency to upset the employer's manufacturing operations. And the Court stated that if the particular practice is neither prohibited nor sanctioned by the federal Act then it is left to the regulations of the states. Now, we say that there is no definite sanction or prohibition against primary picketing by a non-complying union in this Act. Now as -- I do not believe that Section 7 and 13 of the Act, in the light of the history of these sections was intended to grant protection in a case of this type where the union has not complied with the direct mandate of Congress. In the case of International Union against Wisconsin Board, this Court stated that right granted in Section 7 contemplates a lawful strike and does not legalize any and every type of concerted activity. Now I say that under the rulings of these cases and a further statement of the Court at Section 7 (c) and 13 do not give any special dispensation to the right to strike. But outlaw strikes to enforce labor practice to enforce unfair labor practices that this Court could well hold that a strike under these circumstances which denies us the rights which we say we have under the Act is neither prohibited nor protected. Under the -- I believe it to broad purposes of the Wagner and the Taft Acts were to eliminate the economic loss it tendered upon strikes in every case where it was possible. Now, you take this particular case right here. If this were a complying union and made a demand for recognition, they would not have to strike to get it, they could go before the Board. Now if that had been true and we had refused and they had gone before the Board, why, the employees would have been still earning wages and the company would have been in production, you've had no interruption. I think if that is a type of thing its intended to be brought about by the National Labor Relations Act and the Labor Management Relations Act. There's no material change in either of these sections in the -- from the Wagner Act to Taft-Hartley Act in the Act, in the later Act in 1947 Amendment, the conspiracy weapon was taken away from the employers. In other words, any union action, it was otherwise lawful was not made unlawful simply because it was undertaken by several persons in concert. And I believe it those were the principle changes that were made in Section 713 in the Act. And this Court in the Laburnum case stated that in the Garner case the very care which the Court took to point out that if a -- that if a conflict existed the state court must yield, was in itself on assertion that if there was no conflict then a state action would survive. I say that in this case there cannot possibly be any conflict between the state court and the National Labor Relations Board for the simple reason that this Board has forever shut itself off from any possible remedy. This union has shut itself off from any many possible remedy with the National Labor Relations Board. It can't go before it under any circumstances.
Earl Warren: And if that was the purpose of Congress, why didn't they say that under no circumstances that they come before the Board?
John L. Pitts: Your Honor please that's a good question and I wonder that myself. It -- they do not see that and yet they deny them the processes of the Board and the only answer that I can make to it is that Congress thought that that would be sanctions enough without fining them a $100 or six months in jail or something of that type, if they denied them the processes of the Board, they felt that was the strongest sanctions they could have put on. There's no condition attached to these qualifications. It says that the union shall do so and so. And I believe that Congress undoubtedly intended that they be complied with or they -- that they have no standing. Now in this -- in one case decided by this Court on another point, it involved the time of filing a charge in the time of issuance of the compliant. That is the (Inaudible) Russell case which I -- decided by this Court and referred to by me on page 40 of my brief. The Court said in that case phrased differently. The argument is that the benefits of the Act may not flow to a labor organization unless the non-communist affidavits were on file. We agree with the argument and believe it is in accord with our interpretation of Section 9 (a). That's what the Court -- this Court said in the (Inaudible) Russell case.
Earl Warren: Mr. Pitts, may I ask -- may I ask this question? Suppose tomorrow the United Mine Workers were to comply and file these affidavits, what would happen to your injunction?
John L. Pitts: Well, I think it would -- if it rephrase it -- well I'd say this, we'd -- we'd voluntarily agree that it was no longer in effect and we'd have to recognize.
Earl Warren: It would have no -- no effect.
John L. Pitts: Well, I would agree to that. Well, that will be the technical legal --
Earl Warren: Yes. Well that being true then the Federal Government would had -- have complete control of the situation, would it not?
John L. Pitts: Oh, you mean Congress?
Earl Warren: No, I mean under the -- under the Labor Relations Board?
John L. Pitts: By control of the situation --
Earl Warren: Well, I mean to judge of the -- of the rights between that union and -- and employers?
John L. Pitts: To the extent of which --
Earl Warren: (Voice Overlap)
John L. Pitts: To the extent of -- of --
Earl Warren: Of the labor --
John L. Pitts: -- the rights that they're given under the Act, yes Your Honor.
Earl Warren: Given under the Act, yes. Then wouldn't that indicate to you that Congress had preempted that field and I was going to follow that with another question and ask you if Congress did preempt that field would the fact that it required certain acts of compliance divest the Federal Government of its jurisdiction during the time that compliance was not made?
John L. Pitts: If Your Honor please, I think that would be a proper approach to the problem. I think it is -- so long as they deliberately refuse to comply with what the Act says they should do then I think they should -- they at least have waived their right to invoke the protection of the Act during that period of their non-compliance.
Earl Warren: Well, isn't it -- isn't it one thing for the Government not to give any protection to such a union and another thing for the Federal Government to divest itself of jurisdiction in such cases when the purpose of the Act was to have a national policy for the settlement of such disputes.
John L. Pitts: Yes, they're tied in together.
Speaker: Was this -- was this an unfair labor practice of the employee coming there in order to come in and asking to bargain with it?
John L. Pitts: No, sir it is not an unfair labor practice.
Speaker: It is not then I assume --
John L. Pitts: If it were an unfair labor practice we could go before the Board and that's one case where we could go.
Speaker: Well, I was going to say --
John L. Pitts: But it's --
Speaker: -- what about 8 (b) -- 8 small b, big B where it says it shall be an unfair labor practice for a labor organization to force or require any employer to recognize and bargain with the labor organization, as such labor organization has been certified as the representative of such employees under the provision of Section 9, what's the meaning of that?
John L. Pitts: Well, Your Honor, repeat that subsection --
Speaker: Well, it didn't suggest that probably a secondary point about it?
John L. Pitts: There were two unions in -- being involved Your Honor. Now, the petitioning union in this case contend before this Court that the state court decision in this case amounts to a death sentence to the union. Well if that be true I say that it is a voluntarily inflicted death sentence and one that could be eliminated immediately upon the union complying with this provision of Section 9 of the Act. And if it comes down to a question of the balancing of conveniences as to the hardships that would work on us to deal with a non-complying union and a hardship that will work on the union -- by complying with the Act which I see are none, then I see that the scales of balance in favor of the employer because we engage in commerce, we come under the Act regardless and we believe that we are entitled to the -- any advantages there that might possibly approve to us if we comply with our part of it and we say the union must do likewise. And we respectfully ask that this Court affirm the judgment of the state court.
Hugo L. Black: May I ask you if -- was the evidence taken on the exemption?
John L. Pitts: Yes, Your Honor. The evidence however was more or less formal. I mean the -- there is no question of violence involved or anything of that type, it was a peaceful picket line and we establish the fact that this demand for recognition had been made.
Hugo L. Black: What about the (Inaudible) Was that evidence on --
John L. Pitts: We didn't go into the question of -- in other words, we didn't take each one of these union cards and go into it and say call him and say did you sign this or does this X -- is this X mark your signature because at all times we took the position that we were entitled to have a election by the Board and so we didn't attempt --
Hugo L. Black: Even if there was a majority?
John L. Pitts: Your Honor?
Hugo L. Black: Even if there was a majority?
John L. Pitts: No. If we didn't doubt in good faith as to --
Hugo L. Black: So, was there -- was there an answer which set up that there was a majority and was it denied?
John L. Pitts: Well of course under our pleadings in Louisiana we do not have a replication, I mean -- we -- the petition for injunction was filed and the union did claim to have majority and I think --
Hugo L. Black: Was there evidence that there was a majority?
John L. Pitts: He presented --
Hugo L. Black: Was there any evidence (Voice Overlap)?
John L. Pitts: They presented the evidence that there were --
Hugo L. Black: Was there any evidence to the contrary?
John L. Pitts: No, sir. No (Inaudible).
Hugo L. Black: Of course, if you had it to, you'd put it in, wouldn't you?
John L. Pitts: Well --
Hugo L. Black: Why -- why shouldn't you? You were willing to bargain whether you say if they had a majority?
John L. Pitts: We were willing to bargain with them if the Board -- if we had a Board election, yes.
Hugo L. Black: So, you were not willing to bargain with them, they had a majority. Were you taking the position that by failing to file the affidavit they forfeited their right to be a bargaining agent?
John L. Pitts: In effect, yes sir.
Hugo L. Black: That's your --
John L. Pitts: Yes, that's it. That's -- that's -- because of the hardships it caused, it puts on.
Felix Frankfurter: You can -- when you recognize the body of experience, this question in the law that's determining whether they represented the majority had not required certification by the Board, that employers may act as (Inaudible) by ways other than an election and that is by the Board.
John L. Pitts: If I -- well, I'd grant you -- I'd grant you, Your Honor that we could have agreed --
Felix Frankfurter: Suppose -- suppose -- let me put it -- let me put this to you, suppose an employer, I'm a putting a wholly hypothetical (Inaudible) case. Let's suppose a labor board, suppose a union, a conforming union asked for an election, it sets forth that they have -- they have and they have that (Inaudible) the majority, has this well known employer to (Inaudible) and the employer puts in answer and says, "Yes. That's true. We don't deny it. But we to hold up the union until the Board elections to be had." That probably would be unfair labor practice.
John L. Pitts: That's bad faith Your Honor in all --
Felix Frankfurter: Pardon me.
John L. Pitts: That's bad faith and I --
Felix Frankfurter: And that in itself would be an unfair labor practice.
John L. Pitts: I think it would be, yes Your Honor.
Felix Frankfurter: So that ascertaining whether you have a majority by way of Board election followed by a certification is supposedly is the -- by way of determining a contestant, (Inaudible) isn't that right?
John L. Pitts: Yes, sir.
Felix Frankfurter: And do I understand that this is contested by unions that they represent a majority?
John L. Pitts: Well, we -- we did not contest it in the case.
Felix Frankfurter: I don't mean -- I don't -- I don't mean in the Court but as a matter of business in good faith, I mean --
John L. Pitts: Yes, yes. We -- we contest it. We -- we really do because the employees of this particular employer are highly illiterate. They're production employees, 95% of them, and a great many of them signed with X marks and things of that type. And we actually doubt whether they had an employee majority.
Felix Frankfurter: But you are saying (Inaudible)
John L. Pitts: We didn't attempt to prove it Your Honor because they had the cards and we took the position that we didn't have to take their cards and decide whether they constituted a majority or not. There's one case I'd like to discuss with the --
Earl Warren: The issue was raised --
Felix Frankfurter: (Voice Overlap) --
Earl Warren: Pardon me. The issue was raised in the pleadings and you didn't offer any proof as against the proof what they had in the prima facie too, that you found by, don't you?
John L. Pitts: Well, I believe that under the latest ruling of the Board we -- were entitled to take the position that we take and that's the Sunset Lumber, the case that I have --
Earl Warren: Well, but you can't eat your pie and keep it. You can't -- you can't say that you offered no proof in response to these pleadings and then at the same time say to this Court that you doubt very seriously whether they had that majority, can you?
John L. Pitts: If Your Honor -- if Your Honor please, it goes deeper than that, we contend that we are not obligated to deal with the non-complying union.
Earl Warren: That's a different thing. That's a different question. I -- how do I (Inaudible) But that's my question to that, if you take that position I understand a great deal.
Felix Frankfurter: Well, I don't see their illiteracy would become literacy even though the Board could let them have election.
John L. Pitts: No. That's true but I think it would be conducted under the fairest circumstances then --
Felix Frankfurter: If the -- if the circumstances, responsibility of their when the Board let them have an election.
John L. Pitts: Yes. I believe it get a free expression of the will of the employees and I think if that was a purpose of setting up the election machinery in the two Acts, the Wagner Act and the Labor Management Relations Act.
Hugo L. Black: Did you claim to the Court that you haven't done --
John L. Pitts: No, we did not.
Hugo L. Black: Did you ask them to decide -- give you an injunction on the basis that these people were not qualified to bargain because they hadn't -- hadn't complied with the order.
John L. Pitts: Yes.
Hugo L. Black: That -- that was your position.
John L. Pitts: Yes. We took that position.
Hugo L. Black: You did not contest at all from the very beginning, did you, in the Court, or suggest to the Court, that you had any doubt about them being a majority.
John L. Pitts: We didn't formally --
Hugo L. Black: Well -- well, did you do it informally? If so, which part of the representation?
John L. Pitts: No, we did not contest the majority, if Your Honor please. We took the position that we were entitled to an election and were not willing to try it out anyway.
Speaker: Well, isn't that the way that whole allegation -- your paragraph 10 comes in and says that they were picketing without having selected a representative. That's an allegation that in the absence of a majority.
John L. Pitts: Well, we made that --
Speaker: That's your position, isn't it?
John L. Pitts: We made that allegations Your Honor and to tell you frankly we didn't know what the actual facts were at that time because we had not -- we had never seen these cards. You know, the picket line was set up and in the practice of law when you have to go in and draw in a petition for an injunction on the basis of what information you have, why, your allegations might not exactly conform with the proof that you met with when you try the injunction. Now, on a trial it was shown that they had a 174 cards signed up. We don't deny that and we couldn't reverse it.
Hugo L. Black: The employees were there, you could've brought them in just to --
John L. Pitts: Yes, yes. We could have done that.
Speaker: (Inaudible)
Hugo L. Black: You never doubted about this.
Speaker: (Inaudible)
John L. Pitts: 225, they had a 174 cards out of 225. I -- I just want to discuss a case that I started to mention a moment ago. In one case, a union was recognized. It was not certified. The employer voluntarily recognized the union, and the union went before the Board and asked for a certification. And employers says that there's no need for a certification, an election because I have already recognized. And yet in that case the Board says that there are certain advantages attached to the status of a certified union and even though the employer has recognized the union you are entitled to go ahead and have the election and be certified. Now that's -- that is a stamp of -- puts a stamp of approval on a -- the Board of the advantage of dealing with a certified union. Now, that's one of the things that we think that they'd do under the broad purposes of the Act.
Speaker: (Inaudible)
Crampton Harris: We raise a different argument.
Earl Warren: Very well.