Earl Warren: Number 33, Local Union Number 25 of the International Brotherhood of Teamsters versus the New York, New Haven and Hartford Railroad Company. Mr. D'Arcy.
Stephen J. D'Arcy, Jr.: May it please the Court, sir. This case is before this Court on writ of certiorari to the Superior Court for the Commonwealth of Massachusetts. The question was limited as follows. Does the Labor Management Relations Act oust state courts of jurisdiction of a suit by a railroad to enjoin a union and union representatives from engaging in peaceably conducted strikes or attempts to undo such strikes by the employees of interstate motor carriers for the purpose of persuading such carriers to agree to restrict their use of interstate railroad transportation facilities and to give some portion of such interstate carriage work to their employees who are all represented by the union. Now, the respondent railroad company is a common carrier by rail subject to the provisions of the Interstate Commerce Act and to the Railway Labor Act. Since approximately December of 1937, this particular railroad has engaged in the operation of hauling flatcars loaded with truck trailers of the type ordinarily hauled over the highways by a motor truck. The operation is known in the trade and popularly as piggy-backing. This operation is carried on between several cities in New England and New York, principally Boston to New York and vice versa. The petitioner union is the collective bargaining representative of drivers and helpers, employed by motor carriers in the Boston area and has collective bargaining agreements with those motor carriers who operate from the Boston area. The union does not represent any employees of the railroad. The individual petitioners are officers and representatives of the union. The process of piggy-backing is accomplished in the Boston area by having loaded trailers drawn by motor trucks to the railroad yard, known as Yard 5 in Boston. Those trucks are operated by employees of motor carriers who are the members of this organization. There, the trailers are driven or rather taken by mechanical devices by employees of a railroad subsidiary, the New England Transportation Company. That transportation company is a trucking company and subject to the jurisdiction of the National Labor Relations Board under the Labor Management Relations Act. Those employees of New England Transportation are also represented by the same union and the union has a contract with that same New England Transportation Company. Those employees then take the trailers and put them on the flatcars from which point railroad employees, specifically, railroad employees, tie the so-called trailer on to the flatcars so that it can be hauled. For some years as the state court had found here, the union had been disturbed about piggy-backing because it felt that the practice diminished the opportunities of employment of the members of the organization. During the negotiation of collective bargaining agreements with the motor carriers from 1946 up through the contract which was in effect at the time this action commenced, the union had made proposals which would have tendered to restrict the haulage of these trailers on the piggy-back system. The evidence in the record discloses that the union had made such a proposal and finally -- ultimately those contractual proposals did not appear in the contract. After the contracts were -- were agreed upon, discussions and negotiations continued between the union and various individual motor carriers as appears in the record and they came to individual agreements respecting the shipment and the number of trailers to be shipped through their system. Those agreements were not uniform. They were diverse depending upon the particular carrier the union negotiated with. There were also discussions and there had been an --
Harold Burton: (Voice Overlap) --
Stephen J. D'Arcy, Jr.: -- issue raised --
Harold Burton: -- those associations include the New England Transportation Company?
Stephen J. D'Arcy, Jr.: Yes, sir.
Harold Burton: There -- sort of industry wise then?
Stephen J. D'Arcy, Jr.: Well, substantially, yes, Your Honor. As is indicated by the record and as the railroad has contended, that brings the case within the so-called Jacobs case from the Second Circuit where the union had raised the problem of negotiations. But on the basis, we feel of the record in this case, it cannot be established that this contract was within -- or the negotiations were within the framework and the realm of the Jacobs case because it was a proposal, there's no evidence as to the amount of time consumed or the amount of discussions that went on with relation to that particular proposal. Now, on July 11th of --
Stanley Reed: Did -- did they have an agreement with the New England Transportation Company, the union?
Stephen J. D'Arcy, Jr.: Yes, sir. And that was in effect at the time of the acts complained of.
Stanley Reed: And -- and as -- as it was that they would fall on the X number of trailers?
Stephen J. D'Arcy, Jr.: Oh, no, sir. The New England Transportation Company was not particularly involved in sending their own trailers on flatcars.
Stanley Reed: I know. They -- they took the trailers that's been left.
Stephen J. D'Arcy, Jr.: By other companies.
Stanley Reed: By other companies and put them on the flatcars as I understood it?
Stephen J. D'Arcy, Jr.: Yes, that's correct, sir.
Stanley Reed: And they -- they limited the numbers that they would put on?
Stephen J. D'Arcy, Jr.: No, sir. The union had no negotiation at anytime with New England with respect to New England employees not tying or not --
Stanley Reed: Oh --
Stephen J. D'Arcy, Jr.: -- putting the (Voice Overlap) --
Stanley Reed: -- has the New England Transportation Company offered the railroad yard, is that -- is that what you mean?
Stephen J. D'Arcy, Jr.: I'm -- I'm sorry, I didn't follow your question.
Stanley Reed: Whether New England Transportation Company doesn't do all its work in loading these trailers on the --
Stephen J. D'Arcy, Jr.: No, sir. It -- it also was a motor carrier.
Stanley Reed: And your agreement with them related only to those that they brought to the yards?
Stephen J. D'Arcy, Jr.: No, as a matter of fact, sir, all the employees of New England Transportation were represented by this union who had a contract covering them. And the segment of the New England employees at the railroad yard were, I believe, a small proportion of the total number of New England employees.
Stanley Reed: But you said you had a contract with New England?
Stephen J. D'Arcy, Jr.: Yes, sir.
Stanley Reed: And your -- your union contract with them related only to their operations? It had nothing to do with the loading of the cars?
Stephen J. D'Arcy, Jr.: Not particularly. Not particularly, as I say -- as I started to say, sir, the union had raised an issue that under a particular clause in the contract, it prohibited the shipment of these trailers on flatcars. That -- that was an issue which had been raised and the state court found that the contract did not prohibit the shipment of these trailers on the flatcars. Now, on July 11th of 1952, two business representatives of the union appeared at -- on the street outside of Yard 5 of the railroad. And as the original state court trial decision found on a preliminary injunction proceeding, they hailed and signaled drivers of the motor carriers and persuaded them not to enter upon the rail yard premises. As the later trial judge at the hearing on the merits and as affirmed by the Supreme Judicial Court, the activity was found to constitute picketing of the railroad yard and inducement of the New England Transportation Company employees not to engage in their ordinary work in order that the railroad might be forced to stop doing business with the motor carriers and also to force the motor carriers to stop doing business with the railroad and therein does the conflict lie. They persuaded also as they say according to the state court findings, the New England employees not to -- not to engage in their ordinary work. The case came on up through the state court after several hearings on injunction then the merits and then before the Supreme Judicial Court. It is the contention of the union that the activities of which the railroad complained and has set forth in their bill of complaint their substitute bill of complaint and their amended substitute bill of complaint in the state court proceedings clearly accused the union of committing an unfair labor practice under the so-called Taft-Hartley or Labor Management Relations Act of 1947. The state court found that we claim to have permitted such unfair labor practices. What we had claimed was that the state court had found we engaged in such unfair labor practices, and that brings us to another issue as to whether or not the picketing was primary as to the motor carriers whether or not it was secondary as to the railroad. And the whole problem of whether or not reasonably upon reading the pleadings that, the bill of complaint and the defendant's answers in the state court, this is within the doctrine of the Weber and the Garner cases. The Weber against Anheuser-Busch and Garner against Teamsters Union in which Garner of course holds that where the acts complained to have constituted an unfair labor practices -- unfair labor practices within the meaning of the Labor Management Relations Act. Clearly, a state court is without jurisdiction to also enjoin such activities. The original primary and exclusive jurisdiction is with the National Labor Relations Board who administratively under the statute has set up procedures for the expeditious -- most expeditious and priority handling of such type of charges through to the mandatory injunction processes before federal district courts. It is the position of the union that their activity was protected under Section 7 of the Labor Management Relations Act because it was in furtherance of collective bargaining or attempts to collectively bargain with the motor carriers and get them to come to some type of agreement or let's agree that we have come to no agreement at least to induce collective bargaining in good faith upon that respect -- with respect to the issue. Within the doctrine of Weber against Anheuser-Busch, it should have been viewed by the state court that all these proceedings and the acts complained of by the railroad petitioner there ought reasonably to be within that area of labor relations which the National Act is designed to administer and determine. Since the brief was prepared, I have come across in respect to the railroad's position they claim that the railroad could not go to the National Labor Relations Board by virtue of the International Rice Milling case. I might point out in connection with the International Rice Milling case that no railroad filed a charge in that case. The charge was filed by a milling company. And my understanding is that the Labor Relations Board permitted the railroad to participate as amicus curiae in the case. When the case came here, that issue as to whether or not a railroad is an employer under the so-called Taft-Hartley was not raised here by the Labor Board. And it had been found by the Court of Appeals for the Fifth Circuit that the railroad was such an employer. Our contention is that it does not matter whether the railroad is an employer within the meaning of Section 8 (b) (4), the so-called secondary boycott provision of the Taft-Hartley law. The question is whether or not they are a person or whether or not the Board has jurisdiction over the party who was claimed to have committed this unfair labor practice. Going further, the Board has recently held in a non-reported decision and I provided the clerk with certified -- a certified copy of the decision plus other copies on August 30th of this year involving the Kohler Company and United Automobile Workers of the CIO. I think we're probably all familiar with the fact there has been a -- a long standing labor dispute and strike and picketing by the UAW of the Kohler Company and that in accordance with the Board's complaint, they alleged that the union engaged in unlawful secondary boycott activities under 8 (b) (4) (A) of Taft-Hartley by picketing the City of Milwaukee that ran docking facilities and by picketing the Chicago and Northwestern Railway Company, who was alleged in the General Counsel's complaint to be a railroad employer just as the New Haven Railroad here subject to the Interstate Commerce Commission, prior to them and under the Act prior to one and also to the Railway Labor Act. The Board's order -- ordered the union to seize picketing, that employer confined its picketing to Kohler. I point that out to show that the contention that if a charge had been filed by a railroad with the National Labor Relations Board, it would have been processed by the National Labor Relations Board. The Board's rules and the Act itself on Section 10 only provide that when it has charged, that when a person charges an unfair labor practice, the law of the case does not change. It doesn't matter who files the particular charge. Now, my brother has also contended that in approaching the application of the Railway Labor Act to this case as did Mr. Justice Ronan in the Supreme Judicial Court. The conclusion was that the railroad was subject to the Railway Labor Act. Railroad employees are subject to the Railway Labor Act and all their relationships with each other are subject to the Railway Labor Act. Therefore, the railroad has nothing to do with the Taft-Hartley Act. But the activities complained of in this particular case do not involve any relationship between railroads and its employees. There is no finding nor had -- nor was there any accusation that the union induced railroad employees to do something or to refrain from doing anything. All the activity was directed to the motor carriers. Under the leading cases now, it can still be argued very disputably as to whether or not the particular picketing engaged in by the union agents was primary or was secondary. And I think those were the precise problems which this Court has pointed out within the area of the original and exclusive jurisdiction of the National Labor Relations Board in the first instance in order -- and to be tried in state courts or not to be brought here and determine here on proceedings arising out of state courts. Now, the brunt of the railroad's argument then shifts to the averment that the activity in which the union agents engaged was not protected by Section 7 of the law and therefore was within the doctrine of the International Union UAW against the Wisconsin Employment Relations Board, the Briggs Stratton case, were based upon the state court findings, this Court determined that total intermittent stoppages or unannounced ends were not protected activity under Section 7 of the Taft-Hartley law. We do not have in this situation total intermittent stoppages for unannounced purposes as we plead in the record, as we have carefully cited in the brief just what the purpose of the picketing was as the Court found it to be picketing, it was not unstated purposes. The aims were always clear and known to everybody. The railroad also claims that this activity being ambulatory picketing was not protected under Section 7. But in establishing even if that were true that this is ambulatory picketing and therefore unprotected, they are establishing that what it is, is a violation of Section 8 (b) (4) which brings the case clearly within the Garner doctrine again. They claimed that the activity is unprotected because it was a breach of contract and they cite the Mead case in which the same union was also involved and the Mead case stands for the proposition that if there was a breach of contract under Section 301 of Taft-Hartley, an employer may go to court and sue because of that breach. We admit that those possibilities were available here if they were a breach. I don't think it can be established upon this record that they were a breach because it cannot be established on this record that the dispute concerning the flat car hauling of loaded trailers was a dispute or agreements which were subject to the arbitration agreements procedure under the contract then in effect. They say that the purpose then of the stoppage was to breach the contract. Well, the only purpose it could've had if it were breach in the contract would have been to demand from the employer motor carriers a modification of that contract insofar as it did not govern the relationships concerning these flatcars and the flat car hauling of trailers. Carrying that one step further, it would be a clear violation of Section 8 (d) of the Taft-Hartley law which requires that no labor organization or employer either shall engage in a strike or a lockout for the purpose of terminating or modifying any agreement without first having giving 60 days notice to the other party and then within 30 days thereafter in giving notice to the federal and the state mediation and conciliation services in order to avoid the dispute. Thus clearly, if the purpose were to modify the contract, it would be a violation of 8 (d) and very likely then also a violation of 8 (b) (3) by virtue of which the union would be engaging and bargaining in bad faith.
Felix Frankfurter: Mr. D'Arcy, this --
Stephen J. D'Arcy, Jr.: Yes, Your Honor.
Felix Frankfurter: This litigation began in 1952, in July of 1952?
Stephen J. D'Arcy, Jr.: July 15, 1952, sir.
Felix Frankfurter: Now, merely under 1955, what is then the relation between this case and the trucking companies. What is the present relation?
Stephen J. D'Arcy, Jr.: Well, they have a contract, it's rather a complex one, if Your Honor please.
Felix Frankfurter: Well, in this -- in this subject matter out of -- has this subject matter been out of their negotiations?
Stephen J. D'Arcy, Jr.: Yes, sir, by virtue of the injunction under state court decree.
Felix Frankfurter: Well, that -- that enjoins you from certain conduct. It wouldn't enjoin you from reaching a -- or reaching an agreement by negotiation?
Stephen J. D'Arcy, Jr.: Well, it doesn't --
Felix Frankfurter: But my question is, has this subject in taking out of your negotiation, you're -- you're still under the collective agreement with them, aren't you?
Stephen J. D'Arcy, Jr.: No agreement this year, sir.
Felix Frankfurter: And -- but it doesn't deal with this problem?
Stephen J. D'Arcy, Jr.: No, sir. The problem was not raised on negotiations again because of the framework of the state court injunction. And I might say this, the state --
Felix Frankfurter: Well, I don't follow that. I mean --
Stephen J. D'Arcy, Jr.: The state --
Felix Frankfurter: I follow that you were enjoined from certain things.
Stephen J. D'Arcy, Jr.: Yes, sir.
Felix Frankfurter: I don't see how that affects as raising the question across the table.
Stephen J. D'Arcy, Jr.: Well, if Your Honor would look at the --
Felix Frankfurter: Just like you understand it.
Stephen J. D'Arcy, Jr.: Well, if Your Honor would look at the very broad decree of injunction which --
Felix Frankfurter: Is there anything from negotiating?
Stephen J. D'Arcy, Jr.: Yes, sir, from any inducement of -- of any kind of preventing the railroad from engaging in this business. Any inducement of any kind directly or indirectly and it was worded very broadly and that original injunction was issued, ex parte and without notice and has never been changed except as to a final decree with respect to the amicus. That's been in effect since the day it was procured ex parte without notice.
Felix Frankfurter: It's likely unusual, isn't it?
Stephen J. D'Arcy, Jr.: You mean this.
Felix Frankfurter: To enjoin in reaching that, has nothing to do with this case.
Stephen J. D'Arcy, Jr.: Yes.
Felix Frankfurter: Enjoined from reaching a (Inaudible)
Stephen J. D'Arcy, Jr.: Well, that's -- that's been the fact, sir. I might point out that -- and it's not in the record that --
Felix Frankfurter: An action.
Stephen J. D'Arcy, Jr.: -- in the negotiations after the --
Felix Frankfurter: You asked for commodity, it can't be that a court would do that, prevent you from sitting down and -- and arguing this in some (Inaudible) result.
Stephen J. D'Arcy, Jr.: Well, if Your Honor will note in August of 1952 in the record, there was a motion for modification of the decree and while the grounds for the modification are not set forth in the record, the argument that was raised and that I raised at the time was that precisely what the decree does is enjoin us from attempting to bargain about this problem and the Court refused to modify the decree. Now, as I say that --
Felix Frankfurter: (Voice Overlap) that -- that isn't brought to the court, to the Supreme Judicial Court?
Stephen J. D'Arcy, Jr.: Yes, Your Honor and when -- when the case was -- was adjudicated in the Supreme Judicial Court as you'll note in their opinion any of the other issues except the affirming of the final decree were disregarded in accordance with Massachusetts law because that's what they were after, review of the final decree and since they found that to be --
Felix Frankfurter: You mean --
Stephen J. D'Arcy, Jr.: -- lawful.
Felix Frankfurter: Under Massachusetts statute to which I mean the record itself?
Stephen J. D'Arcy, Jr.: Yes, sir. [Laughs]
Felix Frankfurter: (Inaudible)
Stephen J. D'Arcy, Jr.: Well, I thought it was sir and I raised it and they cited cases like the (Inaudible) which you maybe very well familiar and decided that they didn't have to pass upon those questions at that time.
Harold Burton: Are you here on the temporary injunction?
Stephen J. D'Arcy, Jr.: I beg your pardon sir?
Harold Burton: Are you here on -- on certiorari from temporary injunction?
Stephen J. D'Arcy, Jr.: No, sir. We're here on a petition for a writ of certiorari to ask this Court to remand the case of Massachusetts with direction to vacate the decree.
Felix Frankfurter: Well, they -- just to let me -- they attributed questions which you -- that's none -- isn't this -- well, the final decree was -- the injunction was made final?
Harold Burton: Oh, yes, sir. It was made final, yes.
William O. Douglas: Where is that in the decree, final decree?
Stephen J. D'Arcy, Jr.: The final decree in the record, sir? On page 317, sir.
Speaker: Page 317?
Felix Frankfurter: Your -- your order -- if you had to state your position to this case without any minor -- no curiosities, you would say that this is or might be deemed to be a violation of 8 (b) (4)?
Stephen J. D'Arcy, Jr.: If it were before -- before the proper forum.
Felix Frankfurter: (Voice Overlap) before the end (Inaudible)
Stephen J. D'Arcy, Jr.: Precisely.
Felix Frankfurter: That's your case.
Stephen J. D'Arcy, Jr.: Precisely, sir. And that's -- that's the very basic case that under the doctrine of the Canary case, it had to go there first because --
Felix Frankfurter: Are you prepared to say it is a violation of 8 (b) (4)?
Stephen J. D'Arcy, Jr.: Not at this time, sir. It's something that --
Felix Frankfurter: You don't have to say that.
Stephen J. D'Arcy, Jr.: No, sir, as a matter of fact, there have been two recent decisions of Circuit Courts which disagreed with the Board in their interpretation as to so-called situs picketing as to whether or not situs picketing as we had here at the railroad Yard 5 would be a violation of the law for the simple reason that the test under 8 (b) (4) is not where the picketing took place but the object for which the picketing occurred. And there are still dispute within that area. And before that forum, I would dispute that we had engaged in it but the --
Felix Frankfurter: Because if they bring you -- if there was (Inaudible) before the Board, you would fight that, wouldn't you?
Stephen J. D'Arcy, Jr.: Well, yes, and I --
Felix Frankfurter: There's quite a difference.
Stephen J. D'Arcy, Jr.: Well, I think that we would portray our best expression of our position, sir, that we thought this would be legal because it would be protected under Section 7. So, I think the framework of the -- of the railroad's position is that it is not Section 7 because it is 8 (b) violation either by virtue of bad faith by New York, 8 (b) (4) secondary boycott or as they originally accused us of, a violation of Section 8 (b) (4) (D), the jurisdictional dispute because of the assignment of work to truck drivers rather than to railroad employees. One further thing, the last amended substitute complaint which was before the trial on the merits was based specifically upon the National Labor Relations Board decision, the Washington-Oregon Shingle Weaver's case in which an American union, United States union picketed a United States company in order to force them to stop buying a Canadian employer shingles which were made under non-union conditions. And in that case, the Board went and enjoined that conduct of the Canadian employer.
Felix Frankfurter: Was that motion granted?
Stephen J. D'Arcy, Jr.: Their motion was granted, sir, over our position.
Felix Frankfurter: The motion which is on -- is that the -- at the page -- on page 175 of the record? Where does that fall?
Stephen J. D'Arcy, Jr.: Yes, sir, that's the one.
Felix Frankfurter: You say that the present respondent move the carrier -- a court to amend that bill on the ground of -- on the claim that they had a -- that there was a violation?
Stephen J. D'Arcy, Jr.: Yes, sir.The pleadings --
Felix Frankfurter: They wanted to check that for -- from the amendment claim on the motion, the amended complaint.
Stephen J. D'Arcy, Jr.: Yes, sir.
Felix Frankfurter: The motion was granted and the complaint was so amended.
Stephen J. D'Arcy, Jr.: Yes, sir.
Felix Frankfurter: And is that the complaint that's now before us?
Stephen J. D'Arcy, Jr.: Yes, sir, and that was the last complaint and I might add one step further that that's not the first time that the union was accused of engaging in unfair labor practices under the national law. The original and the first amended or the first substitute complaint also accused us of the same violations. Thank you.
Felix Frankfurter: (Voice Overlap) --
Earl Warren: You have -- still have five minutes.
Stephen J. D'Arcy, Jr.: Well, that's all right, sir --
Earl Warren: I didn't know whether you want or not.
Felix Frankfurter: Before you sit down, Mr. D'Arcy, am I right in -- in inferring that the confidence to get down to a decision by Mr. Justice Ronan, in the opinion on page 309, declared the issue to enjoin, isn't it? In this situation, until we are more positively redirected to the contrary. We doubt that the railroad could have been around and by filing a charge, that's the --
Stephen J. D'Arcy, Jr.: I think so, certainly.
Felix Frankfurter: And that's the --
Stephen J. D'Arcy, Jr.: And the --
Felix Frankfurter: -- part of the controversy?
Stephen J. D'Arcy, Jr.: I -- I would say so and I think within the framework of the Anheuser-Busch case, this Court has answered that question. If it were a reasonably and -- or it should have been reasonably viewed by the state court that this was within the area then that's the place to go first, the National --
Felix Frankfurter: Now, before you sit down --
Stephen J. D'Arcy, Jr.: -- Labor Relations Board. Yes, sir?
Felix Frankfurter: -- I also remember but I don't -- when was the Anheuser-Busch case decided, it's after this wasn't it?
Stephen J. D'Arcy, Jr.: Oh, yes, sir. This -- the Weber case was --
Felix Frankfurter: The opinion (Voice Overlap) --
Stephen J. D'Arcy, Jr.: -- last term --
Felix Frankfurter: -- what we've said in Anheuser-Busch.
Stephen J. D'Arcy, Jr.: Yes, sir.Yes, sir, it came after Garner but before Anheuser-Busch. Thank you.
Earl Warren: Mr. Burstein?
Herbert Burstein: I respectfully submit that the case before this Court does not involve any allegation of a commission of an unfair labor practice under Section 8 (b). Since Mr. Justice Frankfurter, however, has raised the question, perhaps I ought to address myself to that aspect of the case first.
Felix Frankfurter: It's your motion that gives me the burdening question on (Voice Overlap) --
Herbert Burstein: Yes, Your Honor. Yes, I understand and I'm aware of the statement in the Anheuser-Busch case that where a party pleads a violation of the National Labor Relations Act, he may thereby submit himself or at least the question perhaps should be one that should be resolved by the Court in the first instance. I respectfully point out to the Court first that we abandoned all claims of a violation of the National Labor Relations Act in the course of trial. I point out further, Your Honors, that my pleading at least --
Felix Frankfurter: Before you go on to another point.
Herbert Burstein: Yes, Your Honor.
Felix Frankfurter: Do you mean that's an answer?
Herbert Burstein: Yes, I say --
Felix Frankfurter: The fact that you disavowed doesn't disprove the eventuality of its existence, doesn't it?
Herbert Burstein: It does this much. Yes, I think it does and I should like to point out why, Your Honor. Your Honor said if I recall Anheuser-Busch, that one cannot escape the jurisdiction of the Board by skillful pleading. I respectfully submit that one does not create jurisdiction in the Board by infelicitous pleading. Remember that this case was tried in the course of the trial. The facts demonstrate that there was no secondary boycott or other violation of the National Labor Relations Act. The allegations in the complaint were conclusions of law and not conclusions of fact.I further point out to Your Honors that at the close of trial, I move to amend the pleadings to conform with the proof and that was done twice. I call Your Honors attention to page 170 and page 296 and counsel for the union joined in the prayer for the amendment of the pleadings to conform with the proof so that the case which came before the Court did not in anywise involved a secondary boycott or other violation of the National Labor Relations Act.Clearly, I cannot and I do not create jurisdiction in a court, in a federal court or oust the state court by improper pleading anymore than he could remove a case by an answer in which he raises a federal issue which does not actually appear in the case.
Felix Frankfurter: Somewhere I've heard them from your argument. The basis of your argument, we had reference whether intrinsic, whatever you may have pleaded or not pleaded, the circuit standing in this record presents a potential question on the Board, is that right?
Herbert Burstein: Precisely and I suggest further --
Felix Frankfurter: (Voice Overlap) to tell you that your name was been signed (Inaudible)
Herbert Burstein: Thank you, Your Honor, but I must accept the responsibility for it.
Felix Frankfurter: I'm not as far as your responsibility, I'm just saying you didn't sign your name in it.
Herbert Burstein: I did not but I must accept the responsibility. I merely point out that there are dark places in the statute which have not been flooded with strong light and there were occasions when it appeared to us that it was possible to allege a violation of the Act or an attempt to procure a violation and thereby seek relief in the state court. In other words, an attempt to produce a violation of the National Labor Relations Act does not in and of itself amount to an unfair labor practice. Under Massachusetts' statute, such an act constitutes a violation of Massachusetts' law and takes the action outside the protective ambit of the anti-injunction law of Massachusetts so that one might properly say an attempt to commit a -- to procure a commission of an unfair labor practice without necessarily giving jurisdiction to the Board because the Board never has jurisdiction unless it has charged that a violation has actually occurred. The attempt to produce a violation is not the concomitant or the equivalent of a commission of an unfair labor practice sufficient to oust the state court. But I go further, Your Honors, I respectfully suggest that this case involves only the question as to whether or not the action of the union constituted a protected concerted activity. My brother has said in the courts below, he has repeated in his brief and we have argued that there is no secondary boycott. The facts here do not require the preliminary investigation of the Board. It does not require the expertise of the Board. There are matters of law of which the state court under federal court are equally competent to judge. Now, there are three fundamental facts which I suggest form a framework for the analysis of the issues. First, since 1937, motor carriers have engaged in the piggy-back operation my adversary has described and the railroad has made a very substantial investment in that service. Since that day, many, many railroads invested many millions of dollars in precisely the same form. For many years there was a collective bargaining agreement between the motor carriers and the petitioner union which never prohibited piggy-back operations. And answering Mr. Justice Reed, New England Transportation is a motor carrier like every other motor carrier, the bulk of its business consists in the transportation of vehicles over the highway. It has a certificate from the Interstate Commerce Commission and although it is a wholly owned subsidiary of the New Haven Railroad, it carries on wholly independent operations including flat car service. It is true, a very limited portion of its work consist in the riding of a trailer up a ramp onto the flat car. A various limited number of its men are employed in that activity. And I might point out, the dispute did to involve the driving of the trailers up the ramp. The dispute involved the objective of the union to eliminate or at least to limit the transportation of trailers by flat car.So that wasn't a dispute, N. E. T. is not a -- is not a secondary employer or a neutral employer in this case, N. E. T. is a primary employer. Now, the third and very vital fact or one of the --
Stanley Reed: Well, before -- before we leave that.
Herbert Burstein: Yes.
Stanley Reed: It doesn't -- the dispute involved, the -- the right of the union to insist that motor carriers limit their deliveries to the railroad for piggy-backing service.
Herbert Burstein: That is the alleged primary dispute and my brother falls into this error. He equates Section 7 with what are proper bargainable demands.Section 7 is a compound of means and objectives. What might be a perfectly proper objective may lose the protection of Section 7 if the means are unlawful. For example, one may properly strike for higher wages, but a strike in violation of an existing collective bargaining agreement is not protected under Section 7 as the Court said in the (Inaudible) case and Your Honors approved in the Briggs Stratton case. So that the dispute -- the objective of the dispute, the objective which may be bargainable and we don't reach this issue. And I dare say that I think I can establish that any agreement between the motor carriers and the employees to limit the use of flatcars might run a foul of the Allen-Bradley principle. It might be an elicit arrangement to engage in a monopoly of transportation, but I don't think we reach that question because what is paramount here is that the locus of the activity was not primary that what the motor carrier employees attempted to do was not to strike the motor carriers at their easily accessible terminals in -- in Boston, but they carried their picket line to a secondary situs and then therein lies the absence of protected activity under Section 7 (a). Now, what they did was this, by establishing a picket line in front of the premises of the railroad, they shut down the railroad's facilities, thereby prevented the railroad from providing the service, thereby prevented the motor carriers from getting the service and in that manner, attempted to resolve their alleged primary dispute with the motor carriers. And I suggest that this conduct poses this very important and unsettled question and the only question I think before the Court whether employees, having a dispute with their employer, are engaged in a concerted activity within the meaning of Section 7 when the picketing is restricted exclusively to the premises of a neutral party in an effort to force the neutral party to cease doing business with the primary employer and in that attempt, in that way attempt to resolve their primary dispute. Now, we contend that the conduct of the union does not --
Stanley Reed: Does that -- you say that doesn't come under --
Herbert Burstein: Section 7. I'm sorry, sir.
Stanley Reed: That doesn't come under 8 (4)?
Herbert Burstein: Definitely not because you cannot have a violation of Section 8 (b) (4) unless you again have a compound of means and objects. There must be a labor organization or its representatives inducing the employees of an employer and in International Rice Milling, this Court said, I think of Mr. Justice Burton's opinion that that means a neutral employer to cease doing business in an effort to force the primary employer to come to terms. There is no neutral employer here. There was no inducement of railroad employee. There was no inducement of any neutral employee because the dispute was between primary employers on the one hand, the motor carriers including New England Transportation and the labor union on the other. So that there is no 8 (b) (4) involved at all.
Stanley Reed: Is there a distinction between union transportation and why (Inaudible)
Herbert Burstein: I'm sorry, sir?
Stanley Reed: Is there a distinction between the railroad and the New England carrier?
Herbert Burstein: Is there a distinction between them? You -- you mean the New Haven Railroad as a railroad --
Stanley Reed: It has the subsidiary, does it not, the carrier?
Herbert Burstein: Yes, it only happens to be the -- the owner of all of the stock in New England Transportation.
Stanley Reed: But the difference in the stock -- because they're different corporations that separate the --
Herbert Burstein: Oh, they're completely separate entities and I think the Court has repeatedly held that the ownership of stock -- mere fact of ownership of stock does not create an ally unless as in the Douds case cited in our brief, the subsidiary is used as a subcontractor performing our work but where there has been a long established parent subsidiary relationship, the Board has repeatedly recognized the independent entity of the subsidiary company. As a matter of fact, New England Transportation is subject to the -- to the Taft-Hartley and I think everyone will concede, the New England -- New Haven Railroad is subject to the Railway Labor Act. So, they are separate and distinct entities and carry on a completely different function. New England Transportation is engaged in motor carrier operations in an area somewhat different from the area served by the New Haven Railroad.
Felix Frankfurter: Mr. Burstein, I don't --
Herbert Burstein: Yes, Your Honor.
Felix Frankfurter: -- recognize to be on --
Herbert Burstein: I'm sorry.
Felix Frankfurter: (Voice Overlap) on 8 (b) (4).
Herbert Burstein: Yes, Your Honor.
Felix Frankfurter: I don't -- I didn't comprehend how quickly -- dispose and perfectly inarbitrability of 8 (b) (4).
Herbert Burstein: All right. I -- I'll answer that. 8 (b) (4) is, as I understand it, a combination of means and objectives. You cannot have a violation of 8 (b) (4) unless a labor organization as defined in the Act --
Felix Frankfurter: (Voice Overlap) --
Herbert Burstein: -- or its representatives --
Felix Frankfurter: -- and that.
Herbert Burstein: Yes -- induce the employees of an employer. It says any employer to engage in a concerted refusal in the course of their work to perform service with an object of preventing that person from doing business with the primary employer. Now, in this instance, there was no inducement of railroad employees. No railroad employees were induced to stop work, that's conceded, the record shows it. No railroad employees were induced to stop working.
Felix Frankfurter: They were induced not to load them.
Herbert Burstein: Oh, no. The railroad employees don't load them. All they do is they fasten it down.
Felix Frankfurter: (Voice Overlap) --
Herbert Burstein: Yes. Now, you would then -- Your Honor have to equate New England Transportation Company with a neutral party. I think there is an unfortunate --
Felix Frankfurter: I don't know what that means. Why do you have to have a neutral party?
Herbert Burstein: Well, as I understand International Rice Milling --
Felix Frankfurter: Suppose the Rice case has felt the way more than that case, it wasn't before the Board?
Herbert Burstein: Yes, I know, but I think the Court said in International Rice Milling that a secondary boycott is accomplished only when there is inducement of employees of neutral employer to engage in a concerted refusal because Your Honor will recall that the inducement of two individual employees was held not to constitute a secondary boycott.
Felix Frankfurter: I don't understand why -- how you take New England out of this thing.
Herbert Burstein: Because New England is a primary employer. There was as much a dispute --
Felix Frankfurter: But in relation -- in relation, what was done here, it was outside the conflict, wasn't it?
Herbert Burstein: Oh, no, New England was very much in the conflict --
Felix Frankfurter: All right. Because -- because it has a (Inaudible)
Herbert Burstein: Apart from that it also engages in a service, no differently than the others. The object was not to prevent New England. The object was not to prevent the loading of the trailers on the flatcars once they came into the yard. The object was to --
Felix Frankfurter: But not to -- haven't put on at all (Voice Overlap) --
Herbert Burstein: Not -- to limit -- to limit the number that could come into the yard.
Felix Frankfurter: This was a way of doing it?
Herbert Burstein: It may have been an -- a technique but it was not the object because 8 (b) (4) requires that an object be the cessation of employment. In the Douds against --
Felix Frankfurter: Maybe that's the way we construe it but 8 (b) (4) on its face and because of that construction and the Rice Milling case certainly, doesn't it?
Herbert Burstein: Your Honor, I have -- I defer to your superior analysis of the case. I read it a number of times. I respectfully submit that Rice Milling says that you do not have a secondary boycott unless there is the inducement of employees of a neutral employer.
Felix Frankfurter: You probably know that I'm most present during that phrase --
Herbert Burstein: Yes, I know.
Felix Frankfurter: -- to cover up analysis before the job when the motion is done. I mean to talk about secondary -- secondary boycott. I'd like to stick close to 8 (b) (4) with its construction. And -- and unless you tell me that case takes it out, that won't be on the face of 8 (b) (4) to the district analysis.
Herbert Burstein: If there is every inducement of a strike, even a primary one has incidental secondary effects. There are perfectly permissible secondary effects. For example, the inducement by a union to the employees of an employer under contract to cease work may have an incidental secondary effect.
Felix Frankfurter: I'm not at this point. Perhaps I didn't make my inquiry, insufficiently I think. I'm not at this Point -- I do not think at this point we have to decide whether this -- this conduct is within or without 8 (b) (4). I think but it is necessary and if I'm mistaken, for you -- for the Supreme Judicial Court's judgment to stand, is to preclude the Labor Board for making a read that it is within it so clearly wrong and erroneous conclusion that the Court would obviously have to accept it. At this point, we're on the area of potentiality of determination of the Board and not going or considering independently the question of law whether it is within or without because that I think is -- it was the -- dealt with (Inaudible)
Herbert Burstein: That's true, Your Honor. I don't think this case poses that issue. I think that issue has been suggested here, but I don't believe -- I do not believe that merely because conduct in the labor field may conceivably lie within the competence of the Board that the state board is per se ousted of jurisdiction. If the facts on their phase disclose that there has no violation of the law, a court is competent to find as a matter of law that there is no violation. The jurisdiction of the Board is merely initial primary that presupposes a concurrent jurisdiction of an administrative agency and a court. This isn't an instance of exhaustion of administrative remedies where I have instituted a proceeding and then go into the Court to get relief, where I have improperly timed my relief. I suggest that on the phase of my papers and the facts before this Court as they were developed in the record, this Court could conclude that there was no secondary boycott.
Felix Frankfurter: That is -- that is -- would you accept this in the phrasing of what you've said if I understand it. That is that this Court must conclude the Labor Board couldn't have decided it wasn't in 8 (b) (4) so as to call for this Court's deference to that difficult determination.
Herbert Burstein: Or -- or under Aircraft & Diesel versus Hirsch that an application to the Court would have been -- would have been futile and the damage irreparable because as I understand the case, Your Honors there said that one need not resort to an agency where an application would be futile and there would be irreparable harm. But I suggest further even if the Board is wrong in International Rice Milling, even if the Board has changed its policy and will take jurisdiction of a case involving a railroad, I suggest that the legislators never intended that railroads be subject to any part of the benefits or the restrictions of the Act, and I should like to take 10 minutes to develop that. I should like to summarily state with Your Honors' permission that where activity is withdrawn from the primary area of dispute and transferred exclusively to a secondary locus, you have secondary activity which was not intended to be protected under Section 7. In this case you also have a question of partial strikes, intermittent strikes, a strike and violation of on agreement. This Court has repeatedly held that this is not a protected activity, the Sands case and so on down the line. Furthermore, if the argument which is advanced that an act not prohibited by 8 (b) (4) is a fortiori protected by 7 is adopted, then it means that the very thing that concerted activities has intended to produce, a collective bargaining agreement may be broken with impunity and the parties engaged in the breach of the contract are protected under Section 7 (a). Such a construction would be obviously self-defeating, I think there's no question that this activity was not primary, and I think the only question which is open for discussion is the question Your Honor has raised. I'm concerned with it.
Felix Frankfurter: I -- I understood you to the answer to your brief, and that's the fighting ground and that's -- I don't -- if I may say so, I think they've got a right about substance, 8 (b) (4) doesn't apply then there's nothing to do.
Herbert Burstein: Right. I might say, Your Honor, that litigants sometimes educate each other. I respectfully submit that this was not Mr. D'Arcy's case. I think if Your Honors will look at the petition for writ of certiorari which I am entitled to treat as a pleading and the question which has certified Mr. D'Arcy's case is pitched entirely on the claim that they were engaged in a primary protected activity. I respectfully submit that's the only question I am obliged to answer here. When the case comes up involving questions of 8 (b) (4) then I think I'll answer that, but I shall just like to address myself to the question of the railroad's position. Section 2, which contains the definitions, expressly excludes a railroad as an employer. Section 2, I think its subdivision 3 which defines employees similarly and by express language excludes employees employed by a railroad.Now, this is interesting to observe. Under the original Wagner Act, the railroads were expressly excluded from the definition of employer. When the Wagner Act was amended, Congress in order to avoid the remote and improbable possibility that railroad employees might be embraced under the terms of the statute, specifically wrote into the law the definition of employees, the language not to include employee subject to the -- to the Railway Labor Act. Now, under the Wagner Act, the Board never assumed jurisdiction over railroads or railroad employees and there's a good reason for it. The Railway Labor Act is one of longer standing than the Wagner Act that it proved a salutary piece of legislation. It too has an administrative machinery to test collective bargaining agreement certification and indeed in case of national strikes and emergencies. Congress never thought it necessary to set up a procedure for dealing with secondary boycotts. Why? Because the railroads have traditionally been accorded special statutory treatment, the railroads were not under the same restrictions and inhibitions as most businessman and were able to get relief from the state courts. Now, we have to conclude that Congress secretly and by implication intended to cover railroads and Your Honor said in one of your opinion, if one cannot see the plain meaning in a statute and surely the statute is not clear, it is full of dark places, I respectfully submit that, then one looks to the legislative history. And the debates on the House and the debates in the Senate demonstrate inclusively that the Act was never intended to be applied to railroads at all. I think Senator Taft, in response to a question put to him by Senator Morse at the time said, "Of course not, railroad labor is always been covered by the Railway Labor Act and we don't intend to cover it under the 8 (b) violation which included the cause of that.” Now, there's one other clue which is I think very significant, in order to bring the railroads within the framework of this Act, one must have a piecemeal application, one must assume that Congress not only was unsophisticated, it was irrational because there are at least five instances in which it would be impossible to apply this Act to railroads and a railroad would be a direct dictum of the secondary boycott and have no remedy, not before the Board and not in the Court perhaps. For example, if a railroad union were to induce railroad employees to engage in a strike for prohibited objects as defined in 8 (b) (4) (A), you could not have a secondary boycott by definition because a railroad union is not a labor organization under the Act. Contrary wise and despite the ruling of the Court of Appeals for the Fifth Circuit, if there was an inducement of employees of a railroad to engage in a strike, you could not have it because the employees of a railroad are not employees within the meaning of the law. You cannot have a violation of 8 (b) (D) because there you will trench on the jurisdiction of the National Railroad Adjustment Board. The assignment of work which is the end-product of a proceeding in 8 (b) (D), where the Board says there's a jurisdictional dispute, I assign the work to Union A, is manifestly impossible because that kind of an adjudication can only be made by National Railroad Adjustment Board. Now, how then is a railroad brought within the compass of this Act? In one situation, the Board in the International Rice Milling said, first, when Congress said the employees of any employer in the A part of 8 (b) (4), it meant any employer irrespective of the definition, then that's an absurdity because Section 10 which deals with the prevention of unfair labor practices says that when any person commits an unfair labor practice as defined in Section 158, a charge may be filed. Well, any person can include a railroad there because a railroad can never commit an unfair labor practice under Section 8 (a) which is the employer unfair labor practices. Now, when the unfair labor practices were included for union, railroad unions were expressly excluded just as railroad employers were excluded from Section 8, the employer unfair labor practices. Now, in this one remote case, where a railroad is a victim of a secondary boycott, it is suggested that the railroad must then pursue the remedies before the Board because in all other cases its position is worse, not better, but worse than every other employer because you can never be the victim of a direct secondary boycott. Now, this would be a foolish way to write a statute. It would not only be bad draftsmanship, it would be impossible of application and construction. It would mean, as I've said in my brief, that you'd have two acts like tenancy in common jointly occupying one field. There is no such doctrine of preemption. Now, I confess to some difficulty, I've had considerable difficulty. And the difficulty is this, it may well be that there is a remedy in the Board when the railroad is a victim of a secondary boycott as it may have been in this case conceivably, it may have a remedy in the Board. I suggest that the doctrine of preemption does not grow out of the existence of a remedy, it grows out of language which expressly says we occupy the entire field or there's a congressional intention to occupy the entire field. Now, it's true perhaps that the railroad could have filed a charge. It is also true that the United States of America can file a charge but would anyone suggest that the United States of America, in order to protect itself from a secondary boycott, must file a charge with the National Labor Relations Board. The Board said no in surprise and made a very silly distinction. They said it was based on the word person. But in the Sherman Act, in the Maritime Act, in a host of other regulatory statutes, the word "person" has been construed to apply to United States Government. I suggest that an interpretation which would require a railroad to go to the Labor Board in the one instance would make this candidly as this law incapable of application. I suggest that the intention of the Congress in enacting the Taft-Hartley was not to bring railroads within the compass of the Act or to make it subject to the jurisdiction of the Board. I suggest that Congress intended at all times that where a railroad was impeded in the performance of its common carrier duties, the railroad could have recourse to the Court and many District Courts have so held.
Felix Frankfurter: That's of course, if you're right, and the only place which a railroad in this situation can go into the state court on the various case?
Herbert Burstein: Not necessarily, Your Honor.
Felix Frankfurter: You could go to the Railway Labor Board?
Herbert Burstein: No, it can't but it will go to a federal court because there may not be a labor dispute and therefore the inhibitions of the Norris-LaGuardia won't apply.
Felix Frankfurter: Well, if the Court, they're only -- supposedly this --
Herbert Burstein: On diversity, yes. I agree, on diversity.
Felix Frankfurter: And do you think this should be out of Norris-LaGuardia?
Herbert Burstein: This one?
Felix Frankfurter: Yes.
Herbert Burstein: This particular case?
Felix Frankfurter: No, no, I mean not this case.
Herbert Burstein: I don't follow Your Honor. I'm --
Felix Frankfurter: It was exactly outside of the jurisdiction of Norris-LaGuardia?
Herbert Burstein: I think so. I think there's no labor dispute --
Felix Frankfurter: I won't get into that because I think that was the real test.
Herbert Burstein: A very interesting question. I think it was adjudicated in the Erie Railroad case which I cite in my -- my brief.I suggest in any event, the mere fact that there is a remedy and here is where I've have had my difficulty, the mere fact that there may be a remedy in this rare case where the railroad is a remote victim of the activity of a union subject to the jurisdiction of the Board, does not preclude the railroad from going into a state court anymore than the United States Government, if it need to prosecute a matter before the Interstate Commerce Commission is in many instances able to pursue its remedies in the state or federal court.
Felix Frankfurter: For Anheuser-Busch (Inaudible) It has a policy to --
Herbert Burstein: Your Honor --
Felix Frankfurter: I'm not asking if you like it or not.
Herbert Burstein: Yes, I think Anheuser-Busch doesn't mean that in every case in which there is an allegation of possible embracing of the activity within the four corners of the statute, you must send it back to the Board for determination. I don't think that this kind of a case particularly calls for the technical knowledge, the skill, the expertise of the National Labor Relations Board. And I suggest further, Anheuser-Busch did one more thing, it pointed out that the Garner case -- the dictum in Garner case suggested by the late Justice Jackson that wherever interstate commerce was involved, you necessarily had preemption. It's suggested by the three categories of cases that if the matter was not covered by the Act or protected, not prohibited, then the state would be free to act. Now, I submit that a state court is competent to decide, to give an action in the light of the persistent denials, remember that my pleadings weren't the only papers before the Court, my very able adversary not only denied the allegation, the conclusory allegation but he joined in my motion to conform the pleadings to the proof. The proof never established a secondary boycott and the mere fact that I plead badly, the mere fact I asked for relief I'm not entitled to does not bind a court in the light of the evidence as educed.
Felix Frankfurter: Did Judge Wyzanski write an opinion in the original application?
Herbert Burstein: This is very interesting, Judge Wyzanksi, I -- I didn't handle that complaint either because I thought it was a bad complaint. A complaint was filed in a federal court and Judge Wyzanski said, "Oh, I can't give you relief under the Labor Management Act because a railroad is not an employer." I respectfully submit that the complaint was bad for other reasons but in any event Judge Wyzanski did suggest that we could not claim relief under the Labor Management Relations Act because the railroad is not an employer. And I think it's cited in my brother's statement to the Court. I might point out too --
Felix Frankfurter: Did he write an opinion?
Herbert Burstein: He did not, it was --
Felix Frankfurter: Just oral?
Herbert Burstein: -- oral opinion, yes. I might point out too that in my statement to the Court, in the opening statement I made to the Court and I should like to point out this -- I think I've got one minute left. I should like to point out that in my opening statement to the Court which appears on -- on page 39, I said, "Now, this is a case which does not involve a secondary boycott under Section 8 (b) (4) (A)." We started with that. I confess that from time to time amendments were made to the pleadings but they were conclusions of law. They were abandoned in the course of trial. We moved to conform the pleadings to the proof, the only case before the Court and the only case that was brought to this Court on the petition for writ of certiorari was whether this activity was protected and therefore the state court was ousted of jurisdiction. I respectfully conclude by saying that I do not believe these activities were concerted nor protected under Section 7 and the judgment should be affirmed. Thank you Your Honor.
Earl Warren: I think you have about three minutes, if you care to use them Mr. D'Arcy?
Stephen J. D'Arcy, Jr.: I -- I should like to point out to the Court that enjoining and the motion as -- as my brother suggested to conform the pleadings to the proof. That was a traditional motion as I understood it at the time to correct dates, times, places, names, spelling things of that nature which is why I get in. As a matter of fact, the first time he cites my joining in into that motion was that the conclusion of a hearing with respect to a preliminary injunction and he even filed that pleading at that stage and that's why the motion was joined in that nature. I don't think in any event that such a motion to change the entire picture of the theory of the case, both as it was tried in Massachusetts and as the Massachusetts Supreme Judicial Court determined the case, mind you pointing out that with respect to the secondary boycott allegations with respect to 8 (b) (4) (A), the Supreme Court of Massachusetts found that we had engaged in such a violation with respect to the New England Transportation Company who is subject to the National Act. That's about all I have, sir. Thank you.
Earl Warren: Thank you.