Earl Warren: Number 29, Z.T. Osborn, Jr., petitioner versus United States. Mr. Lewin, you may continue your argument.
Nathan Lewin: Mr. Chief Justice, may it please the Court. In concluding my argument on the entrapment issue, I would only like to draw the Court's attention to several particular circumstances arising out of the record in this case which strongly support the jury's conclusion of no entrapment in light of all the evidence including petitioner's own testimony. And they are first that in passing on the entrapment claim, the jury was certainly entitled to consider who it is, who was alleged to have been entrapping whom, a policeman of less than one year's experience allegedly entrapping in three or five or six meetings according to petitioner, an attorney of more than 20 years standing. And this is a defense which the jury was certainly entitled to view with skepticism in light of the kind of case that was involved or in light of the charges as to which the petitioner was defending in the forthcoming trial which for themselves obstruction of justice charges or attempts to bribe jurors. It's hard to be likely that an attorney in those circumstances would be readily and even half a dozen meetings entrapped into making this kind of an offer. In addition, it appears quite clear from petitioner's own testimony that he was the one who was instructing, on the very fine details of jury bribery. According to his own testimony, by the third or fourth meeting he was advising Vick that the way to bribe a juror was to pay half down and half later or that the best way to find out whether prospective juror would take to be bribed would be to ask him he wanted and then double the amount. And that appears from petitioner's own testimony. And then the final and conclusive bit of evidence which the Court of Appeals found very persuasive which I think the jury certainly was entitled to find almost conclusive was the reading of the transcript of November 11 that which appears at pages 5 through 8 of our brief. The -- merely reading of that transcript, we believe, discloses makes it entirely clear in the dealings between petitioner and Vick, exactly who it is, who was the Svengali and who it is who was Trilby. It's quite clear from that conversation that Vick was reporting to his master and asking his advice as to what steps to take next. In light of all that evidence, of course, we are not contending that there was no evidence to go to the jury but in light of all that proof, our burden is certainly satisfied sufficiently to warrant the submission of the issue of entrapment to the jury under proper instructions and that's what we've done in this case. Let me now turn to the petitioner's subsidiary challenge on the entrapment issue which is the rebuttal testimony introduced in answer to the entrapment claim was improper. Petitioner focuses on the two bits of rebuttal testimony which are the affidavit of Vick in which he related according to his story the conversation that he had with petitioner on November 7 which was, according to Vick, the very first time that he ever mentioned to petitioner that his cousin was on the jury and the judges testimony that they had authorized that recording. Now I think it's important, just preliminarily, that to make clear that the judges in no way testified that they believed that petitioner was guilty of attempting to bribe the juror. Their testimony was very severely limited. The Government did not attempt to introduce any opinion, evidence of their part to guilt or innocence of the defendant in any way. They testified merely as to what was done on November 8: that the Government prosecutors came to them, advice them that they had an affidavit from a man who said that petitioner was attempting to bribe the juror and that the Government didn't know what do to in those circumstances and that the prosecutors themselves could not, in light of the petitioner's good reputation, in light of petitioners standing in the national bar did not know whether to credit the story. When the judges testified that having read the Affidavit, they authorized the prosecutors to send Vick back in with a tape recording. Now, the judges' testimony was --
Speaker: (Inaudible)
Nathan Lewin: The reason, Mr. Justice Harlan was really because the prosecutors realized that this was a matter going into the integrity of justice in the Middle District of Tennessee. If the Government had been seeking merely the equivalent of a search warrant, and that was also part of our purpose in court, but if they'd been seeking merely the equivalent of the search warrant, then of course, it would have been adequate to go to one judge or to a commissioner. But since this was a matter which went - - both because it involve an officer of the court and because it involve charges of jury entrapping, it went to the integrity of justice, of the administration of justice in that court, the Government felt it was appropriate to bring it to the attention of the - - and affect the whole Court in the Middle District of Tennessee which was both Federal District judges.
Earl Warren: Didn't they both have a jury panel that might be used in the case to it?
Nathan Lewin: Yes, they both had. Well, the jury panel would have been Judge, as an initial matter, the case was assigned to Judge Gray in the Middle District of Tennessee because Judge Miller had refused himself. But there was a possibility that if Judge Gray's panel had been exhausted, that the jury panel in Judge Miller's courtroom would be called upon to serve on Judge Gray. So that they work to that extent, both interested because they both had jury panel which might serve on that trial. But I think the main reason why it's just that the Government felt that this was something which the entire Court of the Middle District of Tennessee should have before it, before the Government took further steps to determine whether the allegations were true or not.
Earl Warren: Mr. Lewin, would it disrupt your argument to state to us just briefly how, just how this testimony came into the case?
Nathan Lewin: The judges' testimony?
Earl Warren: Well, yes.
Nathan Lewin: Well, at the conclusion of the defendant's evidence and the defendant had presented evidence in which he attempted, the petitioner attempted to show that this was all Vick's discussions with him were all part of entrapment scheme and plot on the Government to get him, to ensnare him into making this statement. The Government then in rebuttal, at the conclusion on defendant's evidence put on Judge, first Judge Gray to testify and then Judge Miller to testify to the circumstances surrounding the obtaining of the recording. We feel that this was perfectly proper rebuttal evidence really for three reasons, because it went to three issues which we think were raised by petitioner's own testimony, by petitioner's own defense which we could not, which the Government could not have anticipated as part of his direct case but which is, which was perfectly proper to rebut as part of, of course in Government's rebuttal. And those three --
Earl Warren: And at that same time, bring him the tape recording?
Nathan Lewin: No, Mr. Chief Justice. The tape recording, as part of the Government's original case, Vick testified and he just merely testified that he had a discussion with petitioner on November 7; that thereafter, he was equipped with the tape recorder and had another discussion with petitioner on November 8 when apparently the tape recorder did not work. And that he was again equipped with the tape recorder on November 11 and the tape recording then did work. He then identified the tape and the FBI agents identified the tape and the tape recording was put into evidence as part of the Government's original case to corroborate the testimony of Vick as to his discussions with the petitioner. Now, petitioner in his case, in his defense testified that this whole course of conduct, Vick's discussions with him were part of a government plot intended to ensnare him into making statements and into offering a bribe to a juror. And, it was petitioner's version that Vick first began mentioning his relationship to the juror on October 28 when he was retained by petitioner and that Vick then returned on the following day. And again, three or four days later and suggested that each time that he would first, the first time that he would speak with his cousin and on the third visit that he had spoken with his cousin and that his cousin is willing to accept the bribe. Now, of course, petitioner's own testimony admitted that he met the suggestion only -- responded to the suggestion only weakly and didn't really offer any resistance that by the third meeting he was instructing Vick on exactly how to go about bribing the juror. But nonetheless, there was presented to the jury as a conclusion of the defendant's case, a clear dispute in the testimony as to the conduct of the Vick between October 28 and November 7, which was date when Vick claim that he first had a discussion with petitioner about his cousin being on the jury. Now, the judges' rebuttal testimony and the Affidavit of Vick, we think, went to three factual issues that was then properly before the jury. One was the question of whether the recording itself which petitioner's counsel attacked -- we refer to the various times in petitioner's own examination is that thing on Vick's bag and implying to the jury that this was part of a devious course of conduct by the Government to have worked, the petitioner up to his stay where he would be making a statement into recording device that that recording was unauthorized, unlawful part of an unlawful scheme by the Government. We think that it was appropriate to put on the judges to testify that the Government had come to them. Government prosecutors had come to the judges in their dilemma to seek authorization for that, that kind of investigative step; that the jury would, otherwise, have had the reason to believe that the Government was acting improperly. Now it's true that in passing, in reading petitioner's own admissions to the judges in the disbarment proceeding, what was also read to the jury was the fact that Judge Gray had then said in the course of the disbarment proceeding, that he had authorized the recording. But that did not put before the jury in any way other than hearsay the fact that the judges had authorized him. Those transcripts were introduced simply to establish petitioner's own admissions, his own statements in the disbarment proceeding. And what the judges said at that time, and merely the transcript was being read to the jury. What the judges said at that time was context for petitioner's own admissions.
Abe Fortas: Did petitioner's counsel at the trial attack the truth of the recording, the liability of what is on the recording?
Nathan Lewin: No, petitioner himself, Mr. Justice Fortas, admitted that the recording was accurate.
Abe Fortas: Well, then what was for the jury to decide with respect to the recording in jury? Who has then had the function of deciding whether it was lawful?
Nathan Lewin: No, but the jury had the function of passing, Mr. Justice Fortas on the entrapment claim and on the claim that was all a devious plot by the Government. This was really the (Voice Overlap).
Abe Fortas: Well, what difference does it make on entrapment whether the judges did or there did not authorize the recording?
Nathan Lewin: Well, because the elements of entrapment are both --
Abe Fortas: I know what the elements of entrapment are but what was a -- what difference does it make whether the judges authorized the recording or whether Vick just went there entrap or didn't entrap Osborn and then testified?
Nathan Lewin: Well, the Government's conduct whether we, we think properly that the jury was able to consider how fair, how devious the Government's conduct may have been in all these meetings between Vick and petitioner.
Abe Fortas: It's getting pretty close to saying that what the Government was after was to get a manual of the judiciary around the use of a tape recorder in the entire incident and you don't mean that. Is that your position?
Nathan Lewin: No. Well, our position is that, the Government, when it did equip Vick with a tape recorder, was in a dilemma as to what an appropriate investigative step would be --
Abe Fortas: I'm not asking about that at the moment. What I'm asking about is, what was the reason for putting two federal district judges on the witness stand in a criminal trial? Now, did it have an evidentiary reason or was it merely an effort by the Government to lend weight, believability and force to its case. I think that's the issue that is presented here.
Nathan Lewin: Right, we think it had an evidentiary reason for -- really for almost three separate reasons. We think one, it had an evidentiary reason because it was proper for the jury to consider whether in the course of dealings between petitioner and Vick, the Government had engaged in unlawful activity. That enters as well into a jury determination of entrapment that this Court has in its entrapment cases called attention of the fact that when the Government uses improper persuasion, improper techniques in its dealings with the suspect, then that may very well be part of a determination as to whether the called course of conduct in such that the conviction should be invalidated.
Abe Fortas: Apart from the question on the lawfulness of the use of the recorder, propriety or impropriety is to be determined from the facts and circumstances. Propriety and impropriety are not perhaps, may I suggest this to you, establish by the fact that two Federal judges took the witness stand or even the two federal judges authorized the use of the recorder. I mean, the use of the recorder is either proper or improper. That's apart from the question of the validity of its authorization or lack of authorization.
Nathan Lewin: But we think propriety or impropriety is established to the extent that it shows that the Government was not intending to use the recording unless it had received the authorization of the District judges. In other words, not merely the authorization but just the fact that the Government was not going out on its own to use any kind of investigative method that it could think of. In addition, though, Mr. Justice Fortas, we think there are other reasons, other evidentiary reasons for the judges' testimony. One of the very critical issues of fact before the jury was or I can't say it's critical because our view that even in the petitioner's testimony, there was no entrapment for the jury could have found out. But one of the very important issues was, was Vick suggesting to the petitioner before November 7 that he would speak to his cousin? Vick's testimony was that between October 28 and November 7, he didn't know such thing. Now, the fact that on November 8, the Government came before the judges and submitted to the judges in the Middle District of Tennessee an affidavit by Vick, which contain nothing more than a relation of one conversation, a conversation of a day or before. We think did bear on the issue whether there had been a whole series of conversation as private. If petitioner was telling the truth as to that whole series of dealings, the Government would have had much more by November 8 than merely one conversation by Vick with petitioner. So that the circumstances of the affidavit, and let me say the affidavit was something which the Government wanted to introduce in its case in chief but to which the petitioner objected at that time because Vick was already off the stand and the judge said, “Well, you can only introduce it if you put Vick back on to the stand to identify it.” So, if the affidavit was going to be included and that, we think, did rebut the claim that there had been a series of discussions prior to that, but if the affidavit was going to be put in then the judge had to be put on to identify that affidavit and to say yes on the basis of that affidavit which was presented to mean under circumstances under which it was presented to him. He, I think, did some official act.
Abe Fortas: Maybe.
Nathan Lewin: Pardon?
Abe Fortas: Maybe.
Nathan Lewin: But we think that was a factual issue before the jury. There was a critical factual issue from the point of view of the prosecutors because petitioner's testimony, of course, tried to bring or tried to suggest to the jury that this man was wiggling and persuading him over a whole week or more than a week to try to get him to agree to bribe the juror. So, on the issue of dates, on the issue on what was happening between October 28 and November 7, we think that that testimony of the judges was both proper and in fact necessary from the point of view of the Government.
Speaker: (Inaudible)
Nathan Lewin: No, sir.
Speaker: No (Inaudible)
Nathan Lewin: There was no written order but there is no dispute as to the fact that the judges did in fact authorize.
Speaker: (Inaudible)
Nathan Lewin: I think it was probably just based on the judges' view that they could preserve the integrity of their own bar and of their own court. It was -- the judges immediately, when they first called petitioner before them, view this as a disbarment proceeding as an inquiry into whether an officer of the court had in fact been attempting to corrupt justice in the Middle District of Tennessee. And I think the judges felt this was part of their function in the orderly preservation of the administration of justice in the District of course. I'd like to turn now to the remaining major contention --
Speaker: Yet you said there was a third ground --
Nathan Lewin: Well, the third ground, in my discussion with Mr. Justice Fortas I think sort of -- became intertwine with the second and that is, that we think it's perfectly proper in any entrapment case to bring before the jury the entire course of the Government's conduct. In other words, if a government agency is accused by the defendant as part of his defense of entrapping him, then we think the jury is entitled to know exactly what steps the Government has taken in that series of dealings with the defendant. And what the Government did before Vick went in the second time to speak to petitioner and before Vick went in the third time to speak with petitioner is we think an appropriate consideration to the jury, the jury ought to be have before it in such a determination the entire course of the Government's conduct from beginning to end. And really, petitioner's claim was that from October 28 until the date of this recording on November 11, Vick was engaged in a continuous entrapment which resulted in that -- in what appeared on that recording. And the jury could barely consider on determining whether he was exactly why he went in on November 8 and we think the judges testimony bore on why he went in there to speak to him on November 8 and why he went in there to speak to petitioner on November 11.
Abe Fortas: Was there any departmental regulation, Department of Justice regulation as of this time with respect to certain instances when tape recording of this kind may be used or that device may be used by departmental agents?
Nathan Lewin: I don't know of any, Mr. Justice Fortas.
Abe Fortas: Was there any requirement that the use of the tape recorder or seeking permission to use a tape recorder in the (Inaudible) hearing of a witness have to be approved by the attorney general or anybody else?
Nathan Lewin: Of course, there was. I really don't know but I could find out if there was. I haven't really addressed my attention to that. If you like, I can certainly find out if there was any regulation or not. I don't know of it.
Abe Fortas: It's not whether I like it or not but it's a question here as to whether this act is initially the act of the Department of Justice. I suppose it was, was it?
Nathan Lewin: There was -- you mean whether the request for him to seek tape recording?
Abe Fortas: Yes, and the report --
Nathan Lewin: Yes, that initiated with the Department. But the Department of Justice, nonetheless, reluctant to do it, particularly because it involved an officer of the court and the process of the court and because there were some, of course, some legal issues as to whether it would be permissible which I would like to turn to now. But the Department of Justice was reluctant to do without approval of the judges.
Abe Fortas: So, we're not coming to the legal issue, correct?
Speaker: (Inaudible)
Nathan Lewin: No, we think that would just have been hearsay. In other words, what the judges testified to was -- there was really no transcript of that proceeding before the judges. The judges just testified to what had happened, I guess in chambers, when the Government prosecutors --
Speaker: I guess we haven't heard that?
Nathan Lewin: There was a government prosecutor who came before the judges, yes.
Speaker: What made them the right through application right?
Nathan Lewin: No application right.
Speaker: (Inaudible)
Nathan Lewin: It initiated with government counsel, yes, with the prosecutor.
Speaker: (Inaudible)
Nathan Lewin: Well, counsel, I guess would have testified to what the Government had done there in chambers. He could not have testified, he could have testified, I guess, to what the judge said to him but not to the judges action itself. The judge himself, the judges themselves testified that they did have this question before them and that they did approve it. I request what is in the judges' mind. The reasons that they approved it could not have been testified to by government counsels. The judges in effect said that it was presented to them and because -- they recognized that it was an investigative dilemma, they approved, they authorized the recording. That -- the fact of authorization may be could have been testified to by government counsel. But we think Government wasn't required to be limited to just that testimony but could put on what the judges themselves thought at that time or why they approved it.
Speaker: (Inaudible)
Nathan Lewin: Yes.
Speaker: (Inaudible)
Nathan Lewin: The authorization itself I think it could have prove it against him. I come now to a bundle of invasion of privacy claim, the Fourth Amendment contentions. But before discussing them in detail, I think it's important may be to put the facts in some practical prospective. The record establishes that on December of 1963, Vick requested a meeting with Walter Sheridan, the Government consultant, and reported to him at that time that to his knowledge petitioner had tried to bribe at least one juror in the earlier trial, the trial back in 1962.
Abe Fortas: What do you mean that Mr. Sheridan was a government consultant? Is he a government officer?
Nathan Lewin: He was the special consultant to the attorney general.
Abe Fortas: I beg your pardon?
Nathan Lewin: He was an official of the Department of Justice who was a special consultant to the -- I used the word “consultant” just to shorten his title, Special Consultant to Department of Justice.
Abe Fortas: I see. But he was a government consultant?
Nathan Lewin: Oh! Yes, he was definitely.
Speaker: (Inaudible)
Nathan Lewin: Yes.
Speaker: (Inaudible)
Nathan Lewin: No, Mr. Justice.
Speaker: (Inaudible)
Nathan Lewin: Yes, as I mentioned.
Speaker: (Inaudible)
Nathan Lewin: No, in the summer of July or August of 1963 --
Speaker: (Inaudible)
Nathan Lewin: No, both Sheridan and Vick testified it was some place late July and early or early August.
Speaker: (Inaudible)
Nathan Lewin: Vick went to Sheridan. He called Sheridan and came to him requesting a meeting with Sheridan. Sheridan was then in Nashville. This was several months after the indictment in the -- after the jury bribery indictment which gave rise to the case which immediately followed this and as to which petitioner was representing one of the defendants. Vick was not then employed, at that particular moment he was not employed by petitioner. But Vick asked for meeting with Sheridan. It's true that Vick -- prior to that, just to clear of some things that were raised in petitioner's argument, it's true that Vick have had prior to that, spoken with the FBI and had been told that at the time he was employed by the petitioner that the FBI was not speaking to him because he was employed by the counsel for the defendant.
Speaker: And what did you say that Vick's first conversation was about?
Nathan Lewin: Vick's first conversation with Sheridan - -
Speaker: Yes?
Nathan Lewin: --was about an attempt that petitioner had made to bribe the juror in the 1962 trial when he was representing - -
Speaker: That (Inaudible)
Nathan Lewin: That was the test of the trial. And that report is the report that gave rise to the count two of this indictment on which petitioner was acquitted.
Speaker: That's the (Voice overlap).
Nathan Lewin: That's a weird story. That's right. Now at that time, Vick reported that incident and was told by Sheridan that he did not, Sheridan did not want to hear from him any information about anything other than illegal activity which was specifically told to reporter. He wanted to continue providing information, report information, only about illegal activity and nothing about anything else.
Speaker: Well, let's say Vick at that time was not employed --
Nathan Lewin: He was not employed but it was known that he had previously been employed by petitioner.
Speaker: I don't quite understand. Sheridan told him to report him only what he saw and the way the illegal activities where?
Nathan Lewin: It was known -- well, in relation to the forthcoming trial or in relation to anything he'd known in the past about --
Speaker: I know, but in relation to Mr. Osborn?
Nathan Lewin: At that time -- well, there was reason, of course, in relation to Mr. Osborn as well because there was reason on the basis of Vick's report that Osborn had attempted to bribe the juror in the earlier trial to believe that he might be involved in similar attempts in the forthcoming trial.
Speaker: How was, how was the relationship between Vick and Osborn to be renewed?
Nathan Lewin: There was no discussion of any particular renewal of relationship and there's nothing that I know of in the record or in any place outside the record to suggest that -- well in the record, it specifically deny, both Vick and Sheridan specifically deny, that Sheridan had in any way requested him to be employed by petitioner or that it was suggested that he should seek employment or in -- But, it was known that Vick have had a various associations with petitioner with other people who were investigating for petitioner. And maybe, we're engaging possibly in similar kind of activity. And in that light, Sheridan thought that it would be appropriate to ask. But if there was any other evidence of unlawful activity, it would be brought to his attention.
Speaker: (Inaudible)
Nathan Lewin: The forthcoming trial was the trial which resulted in the convictions which are up here on the next case. We are going to follow this one. In other words, those petitioners had been, and one other, those petitioners and another defendant had been indicted in May of 1963 on those charges and the trial was pending at that time. Now, in --
Earl Warren: When Vick was working for Osborn, is he working at the open or was he working undercover?
Nathan Lewin: I think he was working out in the open, Mr. Chief Justice. He was -- at least to the extent that he was investigating jurors. He was going to people who I guess who knew them or would know them and asking about them.
Earl Warren: And that was generally known, was it that he was doing that work while he was a policeman?
Nathan Lewin: Well, I don't think it was generally known to the police department. I don't think and it was certainly not generally known to the Federal Government. But --
Earl Warren: But why would it be generally known?
Nathan Lewin: Well, possibly to those whom he was asking. I don't think he was disguising his identity when he was asking anybody what they knew about prospective jurors. He didn't report it to either his superior or to the federal government but he nor right, nor is there any evidence on the record or anything that I know which indicate that he was in anyway disguising his identity when he was making this investigation. It was something that he was -- I guess he might say it was sort of in between. It wasn't really an undercover work but it wasn't a sort of thing he was reporting regularly to his superior.
Abe Fortas: (Inaudible)
Nathan Lewin: Not at the time of the test pretrial of this investigating jury. No, we found out about that afterwards.
Abe Fortas: When you found that -- this recording?
Nathan Lewin: Oh, yes! The Government found out after the test pretrial that he had been conducting such investigations and petitioner had retained him from that, yes. Now, the record here contains the testimony, record on this case on page 32-B which is the last two pages of the record contains the testimony of the Government prosecutor that Vick's allegation as to petitioner's attempt to bribe the juror in the 1962 trial was considered by him too incredible that even warrant, he is authorizing any further investigation of that attempt.
Abe Fortas: Has the prosecutor learned of this statement of Vick's from Sheridan?
Nathan Lewin: Yes. And on page 32-B, the prosecutor testified that he -- that he said when that matter was brought to my attention I said: “there's nothing to that. Don't go into that because the petitioner's reputation as a member of the Tennessee Bar”. So that we had, as of the summer of 1963, a report by Vick is to an attempt to bribe the jury in the earlier case which the Government at that point believes too incredible to even warrant investigation. Then, Vick returns, calls and said that he has been --
Abe Fortas: Do we have a tape of this?
Nathan Lewin: Well, on -- in October there was a report in the record, and this was a report that Mr. Kossman was referring to in October in which Vick told someone. It's not clear that he told this to Sheridan. It appears more likely that he told to the FBI agents; that he'd seen the jury list and on the jury list was his cousin, Elliot and somebody else was in there. And just that report that those are the people on the jury. Now, both Vick and Sheridan unequivocally denied that they have ever discussed or that Sheridan did ever suggested to Vick or that Vick ever suggested to Sheridan before November 7 that he would mention to petitioner that his cousin was on the jury. In other words, to the extent that Vick did make the statement on November 7, and in no way suggested or requested by the Government.
Abe Fortas: May I get back to (Inaudible) now? This was a statement of Vick to someone --
Nathan Lewin: Yes.
Abe Fortas: That his cousin was on the jury?
Nathan Lewin: That's right --
Abe Fortas: But in the last statement, he was not yet on Mr. Osborn's employee?
Nathan Lewin: No, this was October 21st. October 21st, this was a week before he was Mr. Osborn's employee.
Abe Fortas: Any suggestion that he get into Mr. Osborn's (Voice overlap).
Nathan Lewin: No, that was unequivocally denied that, that both Sheridan and Vick that there was any suggestion at that time that he get in Mr. Osborn's employee or that he attempts to in anyway even to speak with Osborn. As a matter of fact, that report had nothing to do with Osborn at all. That report simply states that in looking over the jury list, Vick said that he was a cousin of Eliot and that he knew another one of the jurors, prospective jurors on the list. That's the report of October 21st. And Vick's testimony of the trial, Mr. Kossman said that he kept denying that he discussed his relationship with his cousin with anybody in the Government. Well, the denial of Vick's were that the questions which asked him whether he had discussed with anyone in the Government the possibility which was mentioned to Osborn, to the petitioner, his relationship with his cousin. Not that he had denied mentioning to the Government his relationship with his cousin. We fully agree and Vick never denied it that he did tell the Government on October 21st that he was related to Elliott; that Elliot was a cousin. And that's all, that's what he ultimately said to Osborn. Of course, if this relates somewhat to the entrapment claim that that was entrapment, vis-à-vis the petitioner, it should have been entrapped vis-à-vis the Government and I suggest --
William J. Brennan, Jr.: Wasn't it just a week later that he goes into Osborn --
Nathan Lewin: A week later, he was employed by Osborn.
William J. Brennan, Jr.: Right. Now, what were the circumstances of that?
Nathan Lewin: The circumstances of that are that Vick agreed the trial without dispute that he sought employment for Osborn because he was financially -- in financial strife and he wanted to have added income. And that's what he testified to --
William J. Brennan, Jr.: No evidence you say that anyone in the Government, Sheridan or anyone else --
Nathan Lewin: No evidence --
William J. Brennan, Jr.: -- knew he was going to make that?
Nathan Lewin: That's right, no evidence on the record whatever. And after he received employment from Vick, he did report to the Government that he had from petitioner rather, Vick did report to the Government had been employed by petitioner.
William J. Brennan, Jr.: How long after --
Nathan Lewin: Immediately on the same day.
William J. Brennan, Jr.: Meet on the same day?
Nathan Lewin: Yes. Now that, Mr. Justice Brennan, is not, did not really go, we think, to any attempt by the Government to find out whether petitioner was trying to bribe juror. So, that he can't deny that. The Government may, you know, to the extent that Osborn, so that Vick may have learned such things Sheridan could've request him to report but --
William J. Brennan, Jr.: Now, that's back in the summer. What about when he reported that he is going to work for Osborn, whom did he make that report?
Nathan Lewin: He reported that to Sheridan.
William J. Brennan, Jr.: To Sheridan. Did Sheridan again encourage him to report anything that illegal nature he saw?
Nathan Lewin: I don't recall any testimony to that regard but we don't dispute that the instruction back in the summer continued.
William J. Brennan, Jr.: Continued?
Nathan Lewin: Yes, but
William J. Brennan, Jr.: -But --
Nathan Lewin: But that was relevant, if I may just make a point, that was relevant because it's entirely clear from petitioner's own testimony that he knew, and Vick had told him that Vick on his meeting with Sheridan back in the summer, had promised Sheridan that he would not, no longer accept employment from petitioner. On page 458 of the record at the very top, petitioner testifies that he had told me that he promised Walter Sheridan that if Mr. Sheridan would let him alone, he would never work for me again. He had reported that to me. In other words, Vick had spoken to Sheridan in summer and said, “Now, I'm telling you this report about what happened in the past. I won't be employed by Osborn anymore.” Now, in October 28, he again accepts employment from Osborn and he then calls Sheridan. Now that could just as well been attributable to the fact that he promised Sheridan that he wouldn't accept employment from Osborn and yet turned around to Vick as any attempt to convey information to the Government and that --
Abe Fortas: Nevertheless, while Sheridan was concerned. He understood that Vick would report anything that he saw of illegal nature.
Nathan Lewin: Any illegal activity, yes.
Abe Fortas: What was the (Inaudible)?
Nathan Lewin: Nothing was illegal about him finally. It was merely in agreement -- well, but it was a violation of his agreement as it were not to be employed by --
Abe Fortas: While he reports that in, I thought he's just going to report illegal activity?
Nathan Lewin: Well, he reported that because he had told Sheridan that he wouldn't do this and like he may very well felt that now here, he was in effect violating what he had promised Sheridan, he ought to it, he's dealing fairly with Sheridan now, report to him that because of his financial circumstances or whatever reason, he felt that necessary again to take employment from the petitioner.
Abe Fortas: (Inaudible)
Nathan Lewin: That's on page 458. Now, that's petitioner testimony that he knew, that petitioner knew that Vick had spoken with Sheridan and he promised Sheridan not to be in court.
William J. Brennan, Jr.: I mean at that point, I suppose Vick's testimony (Inaudible)?
Nathan Lewin: I --
William J. Brennan, Jr.: (Inaudible)
Nathan Lewin: I don't have that.
William J. Brennan, Jr.: (Inaudible) Mr. Lewin, I thought you told as earlier that the FBI refused to talk with Mr. Vick when he was employed by Sheridan -- by Osborn, is that right?
Nathan Lewin: Yes, but that was, well, what Vick was then suggesting to the FBI was that he would be reporting I guess all sorts of things. And the FBI felt that at that point, first of all, at that point, there was never any suggestion that petitioner had ever tried to bribe the juror. So, certainly, the interest of law enforcement in having Vick speak to petitioner and then report to the FBI which was very farfetched because the only interest presumably, the only thing that would have been gained from to that point would have been defense threat. And that's exactly what the Government has always tried to, not to do in this case and in the case following this. In other words, the FBI felt that at that point, any communications between Vick and federal agents could serve no lawful purpose, or very, very slight purpose --
Abe Fortas: Are you telling us that subsequently, because of changed of circumstances or something, Mr. Sheridan changed the FBI's mind --
Nathan Lewin: No, I don't think he did. He still was interested only in unlawful activity and that was, we think, a request that the FBI could have made and that's what we think is something -- that's in effect the man that's made of every citizen to report unlawful activity. But at that time Vick came to the FBI and asked or proposed a certain arrangement with them, the chances of receiving information of unlawful activity and the dangers of receiving things which were not information of unlawful activity, when balanced, were so substantially against receiving information from Vick that the Government or the FBI at that point said, “Well, we don't want to have anything to do with it.” Now, since that time, of course, Vick had reported an attempt to bribe the juror in that earlier trial.
Speaker: I take it Mr. Sheridan was head on the FBI work here?
Nathan Lewin: I think it's the essence. It's fair to say that he was, he could in fact instruct the FBI what to do, right? Now, Vick then comes to the Government on November 7 and calls up Sheridan and says now petitioner has attempted, Osborn has -- when I mentioned that my cousin was on the jury, Osborn suggested that I offer a bribe to him. And the question, what was the Government to do in these circumstances? If petitioner plan to meet Vick and discuss these things in the future, the furtherance of this endeavor, there was, it was clear that the meetings would be between the two of them alone. There would no way to determine whether Vick's story was truthful other than to permit him to corroborate it by carrying voluntarily a recording device which would record one conversation and one conversation only between himself and the other party to that conversation. Since the problem concerned, the integrity of justice in that Court, it was appropriate to bring it to the attention of district judges and to meet standards which those members of this Court who have expressed the view that and to seeking justification before a magistrate to be obtained before such a recording be made by a government agent. The prosecutors in this case went to the judges and sought authorization. Now, we think that that course, having sought authorization from the judges, having attempted to get corroborative information from only one conversation, we think the practical necessities in this case are quite as compelling as the fact of necessity to which the Chief Justice adverted to in the Lopez case. Here, we have a police officer, his credibility is put in question who will be challenged as to his conversations with a lawyer of longstanding simply on a one to one basis. The jury would just simply be presented by a conflicting testimony which it could not resolve to accept in favor of the man who had a better reputation. And indeed, petitioner's own reputation was at stake. Was the Government merely on Vick's word to indict petitioner and put him to trial in order to present that issue to the jury? We submit that the only realistic, practical course was to take this very limited step of providing corroborative information in these circumstances. Now, if I might just very, very briefly refer to some of the contentions or major contentions made by the amicus in this case and which also lapse over into the claims made in the succeeding cases. The Fourth Amendment certainly wasn't violated by Vick's being there in petitioner's office and speaking with him. Indeed, when petitioner and Vick wanted the greatest amount of secrecy or the greatest amount of confidentiality, between themselves, the record while conclusively demonstrates this, they went out unto the street, into the alley, next to their office to speak with each other. They were not relying in any way. In other words, our proposition is short with regards to the Fourth Amendment claim, is that, the Fourth Amendment is not violated when a government informant repeat statements made to him by defendant even if those statements are made in the Fourth Amendment enclosure. That's because the disclosure of the statement, that would someone makes to me, there is no relation to where it is we happen to be standing. If my best friend tells me something in the privacy of his home, he relied on that privacy to keep out of eavesdroppers, to keep out eavesdroppers but not to keep me up. And he only relies on my trustworthiness not to repeat what I, he said to me. My reputation doesn't in anyway violate the privacy at home. The-- if I might just have one minute to respond to the claim that the, that the judicial authorization was improper which petitioner makes a substantial to do in his petitioner, we think it's a rather remarkable claim since it's quite clear that the Government was taking them more precautionary course which attempting to protect the petitioner's right when it went to the judges in the first instance and sought authorization rather than taking this step entirely on its own. And the circumstances under which the recording were made, both in terms of the limitation as to time and as to place and as to conversation and as to prior authorization, we think, warrant certainly not justified condemnation of the Government's conduct under this Court's decision in Lopez or in of the --
Jacob Kossman: Mr. Chief Justice, --
Earl Warren: Mr. Kossman.
Jacob Kossman: -- I have two minutes?
Earl Warren: Yes, you may.
Jacob Kossman: Mr. Justice Clark, on page 653-A, Vick states, “On October 28, 1963, Osborn asked me if would have take employment. I telephonically communicated this fact to Walter B. Sheridan.” That's to be found on page 653-A. Certainly, not on the legal activity that he was reporting to Sheridan. Now, but more important on page 383-A, there was evidence in the Government's case in chief of the authorization. Judge, they read government Exhibit 13, 14 and 15. On Friday, November the 8th 1963, Judge Miller and I individually were presented with an affidavit. This is being read to the jury, with Mr. Neil taking the part of Judge Miller and Mr. Hooker taking the part of Judge Gray and they begun reading the transcript and according to the affidavit, we individually and I supposed concurrently authorized further investigations of the matter. So, as far as the jury was concerned, as far as the case was concerned, the jury knew that these two judges have authorized. So, therefore, when we say there isn't rebuttal of that thing, there isn't rebuttal of that thing. Now, this business of discussing to Juror Elliot with anybody before you took to Osborn, the record was clear that Vick tried to conceal the fact that he had discussed it, perfectly here on page 138. Question: “Had you discussed that Juror Eliot with anybody before you talk to Mr. Osborn about it?” “No, sir.” “No living human being?” And the two prosecutors were sitting there when he was making those statements and they did not object to say anything about it even though they knew it wasn't so. And finally, even though in the re-direct examination, if the trial he says this question, “Have you discussed with anybody connected with the Government", Vick has asked this question, the matter of going to see Elliot, of Elliot being kin to you or you being close to him, anything of that sort?” And then comes up the junk statement on October the 21st which shows it. Thank you.


Warren E. Burger: Mr. Come, I think you may proceed when you are ready.
Norton J. Come: Mr. Chief Justice, and may it please the Court: The question presented in this case is whether the National Labor Relations Board has authority under Section 9(b) of the Act which gives the Board broad discretion in regard to establishing units appropriate for collective bargaining, to exclude from a bargaining unit employees who are close relatives of the owners of a closely held corporation that employs them without a showing that the employee relatives receive special job-related privilege. The basic facts are these. Respondent is an automobile parts and gasoline dealer in Michigan. The dealership, a closely held corporation, is owned equally by three brothers, Richard, Robert and James Sabo, who are President, Vice President, and Secretary-Treasurer respectively. The three Sabo brothers are actively involved in Respondent's daily operations; together they make all of its policy decisions and retain ultimate responsibility for the supervision of all of its partners. In March of 1981 the Retail Employees Union filed a petition with the Board requesting that a representation election be held among Respondent's employees. Respondent from the union stipulated to an election in two bargaining units, a unit of store and warehouse employees at Respondent's nine retail stores, and a unit of office clerical employees at Respondent's headquarters office. The union received a plurality of the votes in the election, but the validity of its certification as the bargaining representative for both of these units turns on the validity of the Board's action in sustaining the challenges to the ballots of Diane and Mildred Sabo. Diane is the wife of Respondent's President Richard Sabo. She is a regular part time general ledger clerk at the headquarters office. She resides with her husband, and both work at the same office. At work she often goes to lunch with her husband, or one or both of his brothers. Mildred Sabo, the mother of the three Sabo brothers who own and operate Respondent, is a full time cashier at one of the retail stores. She lives with Secretary-Treasurer James Sabo in a house that he owns, and she sees or has contact with her other sons and their families on a regular basis. The Board, applying its longstanding policy of excluding close relatives of the owners of a closely held corporation from bargaining units where the family relationship is such as to remove the employee relative from the community of interests shared with other employees, concluded that Diane and Mildred Sabo should be excluded from the bargaining unit because in view of their relationship to Respondent's owners, their interests were more closely allied with management than with the other employees.
William H. Rehnquist: Mr. Come?
Norton J. Come: Yes, sir.
William H. Rehnquist: Has the Board ever explained the relationship between Section 152(3) of the Act, where Congress says that the term 159(b) to decide that close relatives shan't be members of a bargaining unit? I would think there is an argument there that Congress has already spoken to this subject and it has not gone as far as the Board has.
Norton J. Come: That was the basis on which the Sixth Circuit refused to enforced the Board's order. It felt constrained by Section 2(3) of the statute which excludes from the definition of employee any individual employed by his parent or spouse, which... it is the Board's position that this provision which goes back to the Wagner Act days simply defined the relatives of employers of... who are wholly outside of the Act's protection. It says nothing about how the Board should exercise its discretion in determining appropriate units with respect to relatives who are employees within the Act's coverage.
Sandra Day O'Connor: But Mr. Come, the Board is relying on Section 9(b) authority, and 9(b) speaks in terms of selection of an employer unit, a craft unit, a plant unit, or a subdivision, and it just doesn't address itself to picking out individuals, does it?
Norton J. Come: No, it does not. However, the Board from its earliest days, in defining units under Section 9(b), has used a community of interest standard. The purpose in defining the unit under that standard is to put together groupings of employees that have a unity of economic interests and try to exclude employees that do not share.
Sandra Day O'Connor: Well, is it the Board's position that it could employ a standard that would exclude individuals simply based on anti-union animus alone?
Norton J. Come: No, Your Honor, that is--
Sandra Day O'Connor: Why not, under the Board's theory?
Norton J. Come: --Because, the statute certainly, since the Taft-Hartley amendments, as this Court made clear in Savair, is, mandates neutrality with respect to whether employees wish to select a union or not wish to select a union. So that would not be a permissible criterion. However, I should like to point out that the basis for the Board's exclusion of close relatives from units does not turn on that factor. That may be a consequence of the exclusion, but that is not the basis for the exclusion. One might argue, for example, that if you were to exclude an employee who is highly skilled and makes substantially more an hour from a unit with relatively low paid employees on the ground that they do not share the same unity of economic interest, it may be likely that this high skilled employee might be less disposed to vote for the union than would be the rank and file. But that is not the basis for the exclusion. The basis is whether they share an economic, a community of interest. Now, the board from its earliest days has excluded close relatives that do not fit the 2(3) definition from bargaining units.
Sandra Day O'Connor: How about a close friend of someone in management?
Norton J. Come: Well, I think that that might not be sufficient because the Board over the years has refined its 1 unit exclusion policy and has adopted the factors that were articulated by the Seventh Circuit in the Caravelle case, and in looking at those factors, what the Board looks at is how high a percentage of the stock a parent or spouse owns, how many of the shareholders are related to one another, whether the shareholder is actively engaged in management or holds a supervisory position, how many relatives are employed as compared with the total number of employees, and whether the relative lives in the same household or not.
Sandra Day O'Connor: Well, Mr. Come, is the Board asking just for a rule for relatives and no one else, just a bright line rule for relatives?
Norton J. Come: It's a bright line rule for some relatives.
Byron R. White: Some relatives. In closely held corporations?
Norton J. Come: Well, I think, I think, I think that that is what is involved in this case.
Sandra Day O'Connor: Well, what's the Board asking for, though, and what's the Board's position?
Norton J. Come: Well, the Board, the Board's position is that it is a reasonable and permissible interpretation of its role under the statute to be empowered to find that relatives who would meet the Caravelle criteria, that what we are talking about essentially is close relatives of owners of closely held companies, because the way it is worked out is that unless you have had that situation, the Board has not found that a lack of community interest based solely on the family relationship but has required a showing of a special job state, so that in your example of just a close friend, in that situation the Board has uniformly required more in the way of a showing to warrant exclusion. It would not exclude that sort of a relationship purely on the basis of a relationship, I mean. Now, we think that the Board's policy as it is implemented at least for the past fifteen years since the Board has embraced the Caravelle policy, does further the basic purpose involved in defining appropriate units because the Board's task in defining these units, as I indicated at the outset, is to try to get a grouping of employees that is going to make for efficient collective bargaining, get a cohesiveness of economic interests and try to minimize conflicting interests. And the Caravelle policy does further these objectives. As the Board has pointed out in its decisions, employee relatives, particularly those who reside with owners of the business, have an access to management not shared by other employees. Thus, their perceived need for collective representation to provide such access differs substantially from those of other employees. Moreover, employee relatives who are financially dependent on the owner are likely to be motivated by other considerations, considerations that are very different from those of employees that do not have this relationship. Now, this is apt to manifest itself not so... not only in determining whether to vote for the union or not vote for the election... union, but even should a union be selected in the plant, in terms of what issues to present for collective bargaining. It is the Board's judgment that you are apt to get many more conflicts in that stage of the negotiation, somewhat analogous to the conflicts that this Court pointed out in Pittsburgh Plate Glass in concluding that retirees were not appropriately placed in the same bargaining unit with active employees. So in short, the Board's policy of family exclusion furthers the basic purpose of the Act of ensuring effective collective bargaining and avoiding conflicts in bargaining once a bargaining agent is selected. Secondly, the exclusion of such employee relatives furthers collective bargaining in that the presence of such a close relative in union discussions is likely to be viewed with suspicion and distrust by the other employees and put a damper on union deliberations.
John Paul Stevens: Mr. Come, does this mean if the exclusion, if they are excluded from the unit, that they obviously couldn't be members of the union, I guess they could also not participate in pension plans, collectively bargained pensions programs?
Norton J. Come: If they are excluded from the unit, they would--
John Paul Stevens: They would be excluded.
Norton J. Come: --But that is true, of course, Your Honor, of any employee who is excluded from a unit on a lack of community of interest grounds, and there would be nothing to prevent the employer from setting up equal pension rights or better for--
John Paul Stevens: Except sometimes you need a large group of employees to fund the program, I suppose. You can't have a special fund for your nephew I don't think.
Norton J. Come: --But as I say, that is a problem that occurs whenever employees are excluded from a unit on community of interest grounds.
Byron R. White: Well, you just exclude them from voting, don't you? I mean, why would it mean that you shouldn't treat them as an employee?
Norton J. Come: Well, they are treated as an employee, but they would not--
Byron R. White: Not for these pension purposes?
Norton J. Come: --But they would not be in the bargaining unit. What we are talking about is the propriety of excluding these people from the bargaining unit on the ground that they do not share the same community of interest with the other people who are in that bargaining unit.
Warren E. Burger: But then, are they to be denied the benefits of the union membership forever?
Norton J. Come: No, they're not. It may be possible for them to set up a unit, a separate unit.
Warren E. Burger: Employee relations.
Norton J. Come: Well, they are not like managerial employees in the sense of who would be excluded from all rights of the group.
Warren E. Burger: But the whole thesis is that they are tainted with the managerial taint, isn't it, really?
Norton J. Come: Well, their interests are found to be more allied with management than they are with the rank and file employees.
Warren E. Burger: But do they... I don't think I've got your answer. You say they should be excluded from voting in this first step. Are they excluded from membership in the union thereafter?
Norton J. Come: Well, they are excluded from the bargaining unit. That means that not only do they not vote, but the union is not required to represent them in that unit. If the union wants to take them into membership on... apart from that, that's a matter of the union's membership rules, but it would not be required to bargain for these employees on behalf of the unit for which the union has been certified.
Warren E. Burger: I suppose one of the factors there would be that when they are in negotiations or considering a strike matter, these would in effect be infiltrators whose loyalty would be divided between the... at least divided between the union and the management, is that right?
Norton J. Come: I think that puts it well. It is somewhat analogous to the exclusion of managerial employees which this Court in Bell Aerospace said were not only to be excluded from bargaining units from other employees, which is as far as the Board went, but were excluded from all rights under the Act. The Board has not gone that far with respect to the relatives, but the underlying principle is essentially the same, and the Board's exclusion principle reserves the line between management and labor which this Court in Bell Aerospace and also in Yeshiva indicated that the Congress intended to draw at least in the Taft-Hartley amendments to the Act. I would like to reserve the balance of my time for rebuttal.
Warren E. Burger: Very well. Mr. Katz?
Stewart J. Katz: Mr. Chief Justice, and may it please the Court: In reality, what the Board seeks to do here is they are seeking authority to disenfranchise and exclude from a bargaining unit individuals who fall within the definition of an employee under the Act. In this case, that is relatives of owner-managers of a closely held corporation. They seek to exclude and to disenfranchise for reasons that have nothing to do with what that employee terms and conditions are at the job place. That is conceded by the Board. And there was a specific finding in this case throughout and at the Court of Appeals that there is no special job status or job privileges that Diane and Mildred Sabo enjoyed as a result of their family relationship. The Board is seeking reversal of the Sixth Circuit's finding--
Harry A. Blackmun: But didn't the Board find otherwise with respect to one of them?
Stewart J. Katz: --I'm sorry, Your Honor.
Harry A. Blackmun: Didn't the Board find otherwise--
Stewart J. Katz: I'm sorry, I stand corrected. As to Diane Sabo, two of the three panel members did find special status. The Sixth Circuit and the hearing officer found no special status as to both employees. I stand corrected. The Board is seeking reversal of the Sixth Circuit standard which in effect does not believe that employees should be disenfranchised solely on the basis of their pedigree. We urge adoption of the Sixth Circuit standard. Now, the Sixth Circuit standard is clear. It effectuates the purposes of the Act and congressional intent. Now, in its statements to you, the Board indicated that it has a longstanding policy of exclusion of relatives based on family ties. That we tend to differ upon. As a matter of fact, since 1953, throughout, the Board has applied a special status test. From 1953 to 1967, they consistently applied the test. From 1967, when they passed their decision in Foam Rubber, they indicated that they were now going to go back to a family tie only test. However, as the courts indicated in reviewed decisions of the Board, that was not the case. The Board continued to use at various times special status. I think the Caravelle court even said that. Subsequent to that and the supposed adoption of the adoption of Caravelle, the Board continue at times to use special status cases, and Linn Gear, a Ninth Circuit case, commented on that particular point, so that since 1953... and Linn Gear was decided, I believe, in 1979... the Board has applied in various degrees a special status test. The Sixth Circuit test which relies not to exclude solely on the basis of family ties but is a test in which family ties can be used to demonstrate special status if there are special job privileges and benefits that flow to the employee as a basis of that family relationship, is a neutral test. It takes... it respects all sides because it is related to the job place. The Board, through what it indicates, an adoption of Caravelle, which I am going to comment because that is not the entire Board theory, but in terms of Caravelle, adopts what is... what is called an expanded community of interest test. It looks to things that have no impact or nothing to do with the terms and conditions as they relate to the job place itself. The Sixth Circuit test refuses to do that and remains neutral which is exactly what Savair calls for, as this Court indicated. The Sixth Circuit test does not look to loyalty or divided loyalty. It does not look to how an employee may or may not vote. It does not look to how an employee... whether the employee has engaged in any union activity, which is exactly one of the factors the Board looks to. The Board in 1972 and 1974 adopted Caravelle standards. They haven't applied them uniformly since, but nevertheless, they indicated that that's what they were adopting. However, and as the Board points out in their brief, in a footnote, they also adopted Linn Gear, which was then also adopted by Pattison of the Eight... case in the Eighth Circuit. Linn Gear, one of the factors in Linn Gear is you are supposed to explore and look at what union activity, if any, the relative has engaged in. Now, that, it seems to me, flies directly in the face of not only Savair, but the congressional amendments of 1947 which talk about, in Section 7, the employee has the absolute right to engage in union activity, collective bargaining, et cetera, et cetera, but also has the absolute right to refrain therefrom. In addition, 9(b) in 1947 was changed to grant to all employees their fullest freedoms as it relates to all sections of the Act. And again, 9(b) flows from Section 7. As a matter of fact, Section 7, if it could be characterized as such, is the guts of this Act, and that is to protect the rights of employees, whether or not they are engaged in... or are pro-union or anti-union. So when the question was asked previously as to whether or not union animus might be considered, in Linn Gear that is one of the factors that is put down. What activity, if any, has this employee engaged in vis-a-vis the union? Now, that really should have nothing to do with whether or not an employee has a right to vote. In other words, if a union is going to present evidence, or someone presents evidence that an employee passed cards out and happens to be the sister of the owner, well, am I to assume that because that individual passed cards that she could now vote, or if that employee did not pass cards out or sign the cards, that employee cannot vote?
William H. Rehnquist: --Well, did the union... did the Board apply a test using the factor you have just described in this particular case?
Stewart J. Katz: The Board did not cite any case. It doesn't cite... as I recall the Board decision, it is in a footnote, okay? The Board itself, the hearing officer did not cite Caravelle, okay? The hearing officer did not cite Linn Gear, as I recall his decision. The Board did not cite any case in footnote 2, which was their decision in this case. The Sixth Circuit, in this case prior to coming up here, indicated in its footnote that it rejects the expanded community of interest test that some other circuits have applied. I don't recall offhand whether or not they cited Linn Gear along with Caravelle.
William H. Rehnquist: I didn't understand Mr. Come to defend a test which would have incorporated as one factor how much union activity the particular person had engaged in.
Stewart J. Katz: I'm... I don't... I think he indicated that... I think the question was asked by Justice O'Connor, well, could you consider antiunion animus? And he said no, the Board was neutral--
William H. Rehnquist: Yes.
Stewart J. Katz: --on Savair, and he cited Savair, that based upon its neutrality, that would not be permissible, and I don't disagree with that. What I am saying is is that... and the Board concedes in its brief to this Court... that Caravelle isn't the test. Caravelle plus Linn Gear is the test the Board relies on because the Board has adopted Linn Gear and indicates so in its brief. And one of the Linn Gear factors is what activity, if any, has that employee engaged in? Now, additionally, the Sixth Circuit case protects all rights under Savair. It is a test that has been uniformly applied by the Sixth Circuit for 30 years, since 1953, and as a matter of fact, it was the Sixth Circuit's decision in Sexton in 1953 which triggered Board re-evaluation or evaluation of its position when in 1953 they then decided to follow the Sixth Circuit lead when it decided International Metal. As indicated previously, the Board, although it indicates in 1967 it switched back to a family only tie, based upon Foam Rubber City, the fact of the matter is in all the courts that have reviewed Board conduct since then have indicated that it has engaged in at best a checkered course, and even since Foam Rubber and even since Caravelle, has at various times applies a special status test as to relatives. I'm not talking about only managers, relatives of a manger, I'm talking about relatives of owners, and cases are cited in our brief to this Court. Basically I understand the Board has broad authority as it relates to unit determinations, but they do not have the unlimited discretion to interpret statutory language in a manner that is inconsistent with the Act. 2(3) specifically designates what an employee is, and it indicates what relatives are to be out on a per se basis. That's the test. All the courts, including Caravelle, in Caravelle 1, I believe, indicated that what... that the Board's intent through 9(b) was in effect a modification, an impermissible modification of Section 2.3. All courts have said that, even Caravelle 1. I think Caravelle 1 made the comment, we cannot allow you to accomplish something under one provision that you cannot accomplish under the other. Caravelle then went on, for whatever reason, to draft an expanded community of interest test which allowed the Board or gave the Board some guideline as to whether or not they wanted to follow factors that again had nothing to do with their ability or their factors on the job. And as a matter of fact, the Board, the Court in Caravelle 2, I believe, specifically indicated that the factors they set up have nothing to do with the terms and conditions of the employee at the job.
Sandra Day O'Connor: Well, certainly application of a special job-related privileges or benefits test such as that approved by the Sixth Circuit, could exclude individuals from a bargaining unit who are not excludable under Section 2.
Stewart J. Katz: Yes, that's correct, that's correct.
Sandra Day O'Connor: And you are not arguing that that's improper, are you?
Stewart J. Katz: No, no. I think that... the Sixth Circuit has indicated that, properly used, 9(b) will determine community of interest, but I believe what the Sixth Circuit is saying is that you are going to do that by looking at what that person does at the job. If that person has the same terms and conditions of employee, make the same amount of money, reports to the same job location, is subject to the same work rules, is under the same supervision, then we will take into account the fact that there's a family tie, but we are not going to exclude solely on that family tie. We are not going to exclude an employee from a bargaining unit simply because of this family relationship. Don't forget, the employee cannot vote. The employee is also excluded from the bargaining unit. The employee, however, is still an employee under the Act, now, which raises an interesting sort of a situation because unlike the cases that have come before the Court with the confidential employee in Hendricks or in Bell Aerospace when we are talking about managerial employees, in those cases, not only was the employee out of the unit, regardless of whether they still remained an employee under the act, but the work they did left the unit. In other words, it was the work, the work that triggered the exclusion. In this particular case, the work remains in the unit. That employee is a ledger clerk. Mildred Sabo is a register, a cashier. That work is bargaining unit work. That is what the union has been certified to represent. Now we are faced with a practical situation of here is an employee that can't vote, is not supposedly in the unit, but her work is in the unit. Now, is that person supposed to be... are we supposed to create a job for that person? Are we supposed to terminate that person? Are we... now, whether or not a non-unit employee, which Mildred Sabo in this case would be, is able to perform bargaining unit work is a mandatory subject of bargaining. We cannot take that work and move it out of the bargaining unit on our own unilaterally. That means we have got to sit down at the table with the union, assuming the union wins, and we have got to bargain that out. If the union says no, I am faced as a practical matter with either firing Mildred Sabo or taking a strike. Now, here is an employee that did nothing, has gotten no special privileges in eleven years of work, and all of a sudden her job is in jeopardy, and she never had the right to vote about it either. I think that's wrong, and I think the Sixth Circuit is saying that is exactly what is wrong. Now, if somebody is getting special privileges on the job and there is this great differentiation, then, yeah, I don't have any problem with that, and the Sixth Circuit doesn't have any problem with it. And I might indicate as a--
Byron R. White: Well, what if there were one that was getting special privileges and she was excluded from the unit? What would happen to her work then?
Stewart J. Katz: --Well, at that particular point in time--
Byron R. White: Wouldn't you... you would face your very same problems.
Stewart J. Katz: --No, but there's a differentiation, just like I think in this court there was a differentiation with confidential employees in that not all confidential employees were excluded from the unit. What you have got here is... and I see a distinction and a difference between an employee... if the employer grants special privileges because of that relationship and the employee accepts those special privileges because of the relationship, then wherever the ships fall, the chips fall.
Byron R. White: Well, but her job would still end up in jeopardy.
Stewart J. Katz: Yes, it would, but now, but you see, the point I am making in response to that--
Byron R. White: And it would still be a mandatory bargaining matter if the employer wanted to keep her on that job, or move the job out of the unit.
Stewart J. Katz: --That would be true in that regard, but what I am coming to, though, is that what we are looking for really is a... not a large grouping of employees that are under review here. No family starts a family run business and says to itself, well, look, I am going to make sure that I don't grant any special privileges to my niece, nephew, sister, because eleven years from now or ten years from now I am going to get a union petition. Generally what happens is the family business is run, and it is quite easy to show special status. In virtually, in the vast majority of these cases the parties stipulate that these people are ineligible to vote because it is glaringly obvious that there are special privileges. It is only those unique situations where you have in this particular case two eleven year employees who have no special status, and that's what this whole thing is coming down to, a grouping of employees that are causing--
Thurgood Marshall: Is living in the house with the employer a special status?
Stewart J. Katz: --No, she... in this particular case she maintains the house, she has certain financial responsibilities relative to that house. The Sixth Circuit--
Thurgood Marshall: Well, how many other employees live in that house?
Stewart J. Katz: --Well, none.
Thurgood Marshall: That's what I thought.
Stewart J. Katz: None.
Thurgood Marshall: But that's not a special status.
Stewart J. Katz: As it relates to the job.
Thurgood Marshall: That's right.
Stewart J. Katz: In that regard, yes. In conclusion, I believe that the Sixth Circuit test is the fair test. I think what the Board has done in terms of seeking to reverse, or in its position, is in effect to amend the Act, amend 2(3). It is... its conduct is not in furtherance of congressional intent but is contrary to the congressional intent of the '47 amendments which made specific changes in Section 7 and Section 9(b) to assure all employees the fullest rights under the entire Act, and especially Section 7 rights. I believe firmly that the Sixth Circuit test should be adopted. That is the test which ensures all of those rights. Thank you.
Warren E. Burger: Do you have something further, Mr. Come?
Norton J. Come: I just have--
Warren E. Burger: You have eight minutes remaining.
Norton J. Come: --Two small points. The first point that I want to make is that there's actually a very narrow difference between the Board and the Court of Appeals. The Court of Appeals agrees that if you had special job status, you could exclude these employees. However, the Court requires at least two instances because there was one instance in... of special status, and they said, in connection with Diane Sabo, and they said that was not enough. The only difference is whether or not the Board can reasonably conclude that there are certain circumstances, of which this case is one, where the nature of the relationship is such that even though it has not manifested itself in special job privileges, the relationship is such as to warrant the conclusion that the employees still do not have the same community of interest with the other employees. We submit that this is an allowable choice of the Board to make in the exercise of its Section 9(b) unit determination authority, that the history of the 2(3) exclusion which is set forth at page 26 of our brief, which is a Wagner Act exclusion, gives no indication whatsoever that Congress, in putting in that exclusion, intended in any way to restrict the Board's ability to define, to exclude other relatives from bargaining units. The Senate report says that the exclusion was put in for administrative reasons. The Committee deemed it wise not to include under the bill agricultural laborers, persons in domestic service of any family or person in his home, or any individual employed by his parent or spouse. It seems evident that what Congress was concerned about was excluding very, very localized situations that they thought were not even subject to the Board's jurisdiction at all and were not at all focusing on the problem of the Board's ability to exclude from bargaining units employees who were subject to the Board's jurisdiction.
John Paul Stevens: Mr. Come, could I ask just one question?
Norton J. Come: Yes, Your Honor.
John Paul Stevens: In your brief on page 14, in footnote 7, you do quote from the Linn Gear case.
Norton J. Come: Yes.
John Paul Stevens: The first of the factors quoted is the activity, if any, of the employee in the union.
Norton J. Come: Yes.
John Paul Stevens: And would you address the question whether you think that's an appropriate factor or not?
Norton J. Come: Yes, yes. Well, the Board has never accepted that factor of Linn Gear.
John Paul Stevens: Well, I think your brief says that it is added as a factor. Is that... what your brief is saying now is--
Norton J. Come: Well, some courts have. The Ninth Circuit and the Fifth have added it, but the Board in applying the factors has used the Caravelle articulation of the test which does not include this factor, and the Board has never applied that factor. Normally, the... so based upon the Board decisions that I am aware of, the Board does not regard that as an appropriate factor.
John Paul Stevens: --How about the second factor there, the total number of employees as compared with the blood-related number? Does this mean that it depends on whether the family people are apt to influence the outcome of the election? Is that what is critical?
Norton J. Come: No, I don't think that it, that it is confined to that situation. I think that it could be a factor in terms of the potentiality for conflicts in the bargaining process that ensues. I mean, if you have one relative in a unit of 50 employees, the potential for conflict disrupting the bargaining process might be less than if it was a much smaller number. Well, that factor was not applied in this case.
Lewis F. Powell, Jr.: Mr. Come--
Norton J. Come: Yes, Your Honor.
Lewis F. Powell, Jr.: --Both your brief and argument have spoken in terms of close relatives. What about people who are very close together but who are not blood relatives in any way, shape or form? Does the Caravelle test fit those people? For example, it often happens these days that you have a man and a woman living together who are not married, or you may have two brothers who are totally at odds with each other, for whatever reason, they may live in the same house. Does relationship extend beyond blood relationship that you are arguing about? Your brief would not indicate that it does.
Norton J. Come: Yes. The cases that I know of that the Board has had have been blood relative situations, but I wouldn't say that it could not extend beyond that. I think the most important thing is not only the relationship but the role that the relative plays in the ownership and management of the business. As the Caravelle criteria have been applied, special status has been required where you have had relatives who either had no ownership interest in the company or a relatively minor one.
Lewis F. Powell, Jr.: But I didn't understand Caravelle to apply the special status rule, and what you just said suggests that the Board would consider the special status or special relationship.
Norton J. Come: I perhaps may not understand--
Lewis F. Powell, Jr.: Well, there are two general standards. One is a special status standard applied by the Sixth Circuit, and the other is the Caravelle standard applied by the Seventh, and they are quite different in the way they are framed.
Norton J. Come: --Well, special status means that you'd have to have, have some difference in job benefits and privileges. That would be a basis for excluding individuals from bargaining units even without any family relationship at all.
Lewis F. Powell, Jr.: But did the Court of Appeals in this case find any special privilege?
Norton J. Come: It did not. The Board found special privilege in respect to Diane Sabo, and that was an alternative basis for the Board's exclusion. But the Court of Appeals found that one instance was not enough, and we are not raising that evidentiary determination here. What we are going on is the propriety of the exclusion based upon the family relationship.
Warren E. Burger: Your time has expired now, Mr. Come. Thank you, gentlemen. The case is submitted. We will hear arguments next in Paulsen v. the Commissioner of Internal Revenue.