Earl Warren: Number 79, International Brotherhood of Teamsters versus Vogt, Incorporated. Mr. Previant.
David Previant: If the Court please, this case comes here on writ of certiorari to the Supreme Court of the State of Wisconsin to review a judgment of that Court which restrains the petitioners from peaceful picketing at the place of employment of nonunion workingmen. Litigation was initiated in the Circuit Court for Waukesha County which entered ex parte temporary and permanent injunctions against such picketing. On appeal to the Wisconsin Supreme Court, it, first, rendered the decision, in which unanimously held, that the lower court was in error and reversed the lower court with directions to dissolve the injunction. Upon motion for rehearing and after re-argument, some seven months later, the Court reversed itself and, by a vote of six-to-one, reinstated the permanent injunction, holding that it was in error in its first opinion when it directed the lower court to dissolve it.
Speaker: Do we have to pursue a study or a motion?
David Previant: On motion. The case presents the question whether such peaceful picketing at the place of employment of nonunion employees, unaccompanied by any demand upon the employer and preceded only by a solicitation of the nonunion employees, is protected by the First and Fourteenth Amendments of the Constitution or whether, as the court below found that such picketing was engaged in for the unlawful purpose of compelling the employer, through economic coercion, to interfere with the rights of his employees not to join a union in violation of the state law. The evidentiary facts are simple and they are undisputed. The employer operates a place of business in a gravel pit in the Town of Oconomowoc, County of Waukesha in the State of Wisconsin. In its operations, it employees from some 10 to 15 employees, all of whom are eligible for membership in either of the three unions which are the petitioners here. In August of 1953 and again in April of 1954, the petitioning unions solicited directly the membership of these nonunion employees, discussed with them the advantages of organization, but their invitation was rejected. Now, there is some statement in respondent's brief that this solicitation occurred over a period of 12 months. The record does not so show it, but we believe it is immaterial. After the refusal of the employees and, again, without any approach ever having been made to the employer, without any demand ever having been made upon the employer, the petitioners commenced picketing. They picketed at the site of the gravel pit on a public road immediately adjoining the gravel pit where the employer maintained his place of business and where the nonunion employees were working. The sign which they displayed carried the very simple and truthful legend that the men on the job were not 100% affiliated with the American Federation of Labor. And, the sign was signed by the three unions involved, the Building and Construction Labor's Union, the Operating Engineers' Union and the Teamsters Union and, that is, the local unions of those organizations. There is no proof with respect to the extent of the traffic which used the road. There was no proof with the extent to the number of customers which might come to that particular job site to transact business with the employer. The picketing was completely peaceful and completely orderly. There was no obstruction of any kind, no threats, and no violence.
Felix Frankfurter: In number, how many were there?
David Previant: Two or three, sometimes one. The record is -- I don't believe that there's even a reference in the record to that. It may be, if there is, that there were one. But, there was no mass picketing, no finding of mass picketing of any kind. Now, some truck drivers of material suppliers to this place of business refused to go through that picket line. In consequence of which, the employer used his own trucks with which to pick up the materials which had been or would have been delivered by these other truck drivers who did not go through the line. He did sustain inconvenience. He sustained expense and he sustained damage. When I say “he,” I speak of the employer. Now, all of these facts were alleged by the employer and they were admitted procedurally by the petitioners. I say, therefore, there is no undisputed evidentiary fact in the record. When respondent says that there is some dispute, respondent refers to the allegation, also contained in the bill of complaint, that the picketing was unlawful because it was indulged in or engaged in for the purpose of coercing the employer to coerce the employees in the exercise of the right not to join a union and, therefore, to coerce him in violation of state law and, therefore, the picketing was unlawfully purposed. It was also charged that the picketing was unlawful per se because of the existence in the State of Wisconsin of a statute which defines a labor dispute as a controversy over wages and working conditions between an employer and a majority of his employees and a further statute which says that unless there is a labor dispute as so defined, picketing is unlawful. The Union denied the unlawful purposes. The Union asserted that the wages and working conditions of these employees were less than those which prevailed in union contracts. They asserted the desirability of inducing these employees to join their union for the purpose of protecting their standards, and they asserted the unconstitutionality of the Wisconsin statute which was invoked defining a labor dispute and prohibiting picketing unless pursuant to a dispute so defined and asserted also that any restraining order or injunction which might be entered under these factual circumstances would deprive them of their rights under the Fourteenth Amendment conjoined with the First Amendment. In the circuit court, or what would ordinarily be the trial court, in view of the allegations of the complaint and the admissions of the petitioners here, there was no evidence taken. The Court made its decision based upon those uncontroverted facts. It found, number one, that there was no unlawful purpose. It found, number two, that there was a purpose to organize the employees who did not belong to the union, said, as a matter of fact, to induce the plaintiff's employees to organize and affiliate with the unions. It found that to be the purpose. However, it felt that it was bound by the Wisconsin statutory scheme of prohibiting picketing unless the picketing was pursuant to a dispute between a majority of the employees and the employer. So, it found the picketing unlawful, under the statute which I've alluded to, and entered a temporary injunction restraining the picketing. The parties there upon stipulated that the record contained all of the facts that would be adduced in Court on the merits. And, on such stipulation, the Court then entered its permanent injunction making, again, the same findings of facts and the same conclusions of law. From that point, the unions took an appeal to the Wisconsin Supreme Court and because the holding of the Wisconsin Supreme Court initially is pertinent to these proceedings with the leave of court. I would like to quote this one flat unequivocal finding of the Wisconsin Court in the first decision. The Court said, “The testimony would not have supported a finding of the facts constituting a violation of either of the subsections.”
Felix Frankfurter: Would you -- would it interfere with the course of your intended argument if you stated the difference between 11 -- 111.06 (2)(b) and (2)(a)?
David Previant: 111.06 (2)(a) restrains the unions from coercing employees in their right to join or not to join a union. 111.06 (2)(b) restrains employers in the exercise of the right to join or not to join a union.
Felix Frankfurter: Well, and this was found to violate (b)? I mean, on the final rehearing?
David Previant: The final rehearing was that the violation of (b) and that is all that is involved in this case. Now, again, the Wisconsin court said no threats were made against the plaintiff. No demands were made upon them. It does not appear that any of it's -- it does not appear that any of the defendant's representatives had even spoken to plaintiff law officers about their desire to organize its employees. There was no violence, no force, no threat of force, no disorder, or physical destruction to plaintiff's property. There was no evidence that defendant's representatives had coerced or intimidated any of plaintiff's employees in the right to join or refuse to join either of the defendant unions. There was only peaceful persuasion exercised by the carrying of a banner bearing a truthful legend.
Felix Frankfurter: Suppose the trial court has found that there was coercion, did it find that? Did it find that?
David Previant: It did not.
Felix Frankfurter: Suppose it had found that there was coercion, would you be here?
David Previant: Yes, the case would be in no different posture at all because we say that, on these --
Felix Frankfurter: I'm saying that, on the facts -- on the facts, --
David Previant: On these --
Felix Frankfurter: -- they couldn't have found coercion, is that it?
David Previant: It could not have found coercion to accomplish an unlawful purpose in violation of Wisconsin statue. When you say “coercion,” of course you're speaking of a term that has many meanings, but --
Felix Frankfurter: That's why I bring the question.
David Previant: -- but it may have been coercive. It may have been compulsive. It may have been inducing. There are many adjectives that might describe the effect which picketing may have. But, to say that it is illegally coercive, in that, it was to compel the commission of an unlawful act is an entirely different thing. That is the finding which the trial court refused to make. That is the finding which the Wisconsin Supreme Court refused to make in the first decision. That is the finding which the Wisconsin Supreme Court made in its second decision.
Felix Frankfurter: So, all Wisconsin said that picketing in order to coerce recognition of the union is unlawful. Would that be unconstitutional?
David Previant: Well, it raises, of course, questions that are not here present because --
Felix Frankfurter: I'm not sure they're not.
David Previant: -- that is not the fact.
Felix Frankfurter: I'm not sure they're not.
David Previant: No, because the Wisconsin Court expressively rejected any idea that Union here was coercing the employees for recognition or that the Union was claiming to recognize them. It expressively rejected any finding that the picketing activities were coercive of the employees.
Felix Frankfurter: I'm not talking about the employees. What I'm --
David Previant: Then, I misapprehended the question.
Felix Frankfurter: The action which says picketing to coerce an employer to recognize a Union shall hereafter be barred. Would that be unlawful?
David Previant: Even though the Union may, at that time, represent a majority?
Felix Frankfurter: Pardon me?
David Previant: Even though the Union may, at that time, represent a majority?
Felix Frankfurter: Yes.
David Previant: Well, if the Union represents a majority, it raises other questions. I believe that the picketing would be protected in that instance. But, it raises a question which is not present here because, although the Court found that kind of purpose here, we say the record would not support such finding. We have never made a claim to represent --
Felix Frankfurter: What was the picketing --
David Previant: -- a majority of the employees.
Felix Frankfurter: What was the picketing for?
David Previant: The picketing was for the purpose of protecting Union standards. It was hoped that, ultimately, we might persuade these employees to join the Union. It was hoped that, during that period of time, we might divert patronage, --
Felix Frankfurter: Well, the --
David Previant: -- of course, to the Union's place.
Felix Frankfurter: Suppose your Court -- I'm asking these questions because these are very troublesome questions.
David Previant: Yes.
Felix Frankfurter: In my own mind and in the opinion of this Court, they are very troublesome, in my own mind. Suppose the Wisconsin Court had found that this was an effort by what they found to be coercion to get Union recognition and that Wisconsin law barred that. Would that be unconstitutional?
David Previant: Well, now, the Wisconsin Court did find that this was coercion to get Union recognition by using the influence of the employer in that regard. In other words, by either having the employer say to the Union, “I recognize you” or having the employer say to the employees, “You must join the Union or I'll discharge you” and thereby putting the Union in a position of representing the employees. Now, that's what the Wisconsin Court said. And, we're not according with any statutory policy that says an employee has a right to refuse the join a Union, that says that an employer must not interfere with the exercise of that right, and that says a Union shall not picket the employer to compel the employer to interfere with the exercise of that right. That's been decided here, but that is not this case.
Felix Frankfurter: But why -- I don't follow that all that is constitutional but to bring pressure to bare or what the State would call coercion to get Union recognition would be violative of the constitution. I don't follow that. I cannot --
David Previant: Well, I think in one --
Felix Frankfurter: -- connect coercion.
David Previant: In one sense, you're talking about coercing the violation of the state law. In the other sense --
Felix Frankfurter: Well, the state law is that you shouldn't, by means of picketing, obtain that object. That's the state law.
David Previant: That's the state law now, Your Honor.
Felix Frankfurter: Yes. Well, now, is that unconstitutional?
David Previant: No, it is not.
Felix Frankfurter: Is what?
David Previant: I think the question that is raised here is whether or not, on these facts, --
Felix Frankfurter: So, this isn't -- you're not into that -- you're not attacking the validity of the statute but whether these facts bring it within it?
David Previant: That's right. That's right, we're attacking the validity of an injunction purportedly based upon the statue which deprives us of constitutional rights.
Felix Frankfurter: That all depends on the construction the State court made of the specific facts and the allowable area of differences of judgment.
David Previant: Well, it depends upon the inferences the Court drew from undisputed facts where a primary constitutional right is involved.
Felix Frankfurter: Well, with all due respect, Mr. Previant, I don't get very far by starting out with a violation -- with a finding of a violation of a constitutional right. If that's there, of course, that's an end of the matter.
David Previant: Well --
Felix Frankfurter: What I'm troubled about is exactly what it is you're asking us to do, namely, as I understand it, you're asking us to say there was no warrant on undisputed facts -- there was no warrant on undisputed facts and -- on the part of the Supreme Court of Wisconsin to draw the inference, that's what this is, to draw the inference that the effect of this is to compel to use this means of picketing, this means of gaining recognition for the Union. That that was a disallowable inference by the Court, is that right?
David Previant: It's precisely our position, Your Honor. The Wisconsin Court did reject the idea that picketing here could have been restrained because of the statute which said it had to be only in pursuance of the dispute between a majority and an employer. In fact, in another case decided the same day, it had declared that statute unconstitutional and they had refused to apply that principle on this case on the authority of the Swing and Wohl cases. On rehearing, however, without the -- without any further facts, without any further evidence, and without referring to any further acts, the Court concluded that it was in error in making its initial finding that the record would not support a finding of unlawful purpose. It said it had given insufficient consideration to other rights which might be involved in the situation. It said it had a right to draw its own inferences from the undisputed facts, just as we say this Court has the right to do so. It concluded that the Union hoped that the picketing would interfere with the business of the employer and, thus, bring pressure upon the employer to coerce the employees to join the Union. It concluded that the message of the banner could not have been of any enlightenment to the employees because the employees had already been solicited and were aware of the fact that the Union wanted them to join. It concluded that, since the picketing was on a country road and business was patronized by only a small number of customers. When I say that, that's an inference which the Court drew, it's not in the record. This picketing could not be the guidance of the -- or it could not for the guidance of the community. So, having rejected those possible bases for picketing, it came to the ultimate conclusion that the only purpose was to influence the deliverymen and this would then compel the employer because of the inconvenience and damage sustained by it to either continue -- permit the continuance of the picketing with loss to him and, possibly, the loss of his business or by some means or other coerce his employees, in violation of the Wisconsin statute, to join the Union in violation of section 111.06 (2)(b) and, therefore, the Court vacated its original mandate that reinstated initial judgment. The Unions were permanently restrained from engaging in any picketing at or about the premises where the nonunion employees were employed and where business is located.
Felix Frankfurter: Am I right in finding that this shifting position by your Supreme Court took place between June 28th and October 5th?
David Previant: Well, October is when the case was reargued, Your Honor.
Felix Frankfurter: Yes.
David Previant: The decision of the Court was announced in February of the following year, over a period of some-six or seven months, the shifting position took place, that's right.
Felix Frankfurter: In the same court?
David Previant: Same court, no change in personnel, same counsel on the case.
Felix Frankfurter: That cuts both ways.
David Previant: That's right. The picketing cases of this Court are very extensively reviewed in the brief that was filed here by amicus curiae. We don't intend to examine and analyze each of those cases in detail. They may be summarized generally and briefly, as holding number one, that picketing is the working man's means of communication. It is a form of free speech. Number two, that in some aspects it has some plus considerations and, so, it may be a little bit more than free speech and, therefore, it is subject to regulation by the State in some limited aspects. Those limited aspects, under the decisions of this Court, were that picketing which is enmeshed with violence or in a background of violence could be restrained, or that picketing a place which has no economic connection with the area of the dispute could be restrained, or that picketing to compel the violation of a valid state policy could be restrained. This Court did make it clear, however, that picketing to -- could not be restrained merely based upon the State's notion of what is a labor dispute or trying to establish artificial bounds to a labor dispute. Actually, this case involves that series of cases in which this Court held that picketing to compel a violation of the valid state policy may be regulated or restrained by the State regardless of whether that state policy is announced by the judiciary or by the legislative branch of the State.
Felix Frankfurter: Well, I'm -- I'm not surprised that I'm puzzled again because these are tricky --
David Previant: Well, I'm sorry.
Felix Frankfurter: -- these are tricky problems and not your fault. But, here, the problem isn't -- as I understood from our colloquy, you recognize that the State may make it a State policy not to bring what is called the coercive influence of picketing to bear to bring about a particular result.
David Previant: That's right.
Felix Frankfurter: Is that right?
David Previant: That's right.
Felix Frankfurter: But, your -- what I understood you to indicate with the issue before us is that there is no basis on this record to warrant such a conclusion --
David Previant: That's true and what I --
Felix Frankfurter: -- for bringing it within that policy.
David Previant: That's right.
Felix Frankfurter: So, we don't have to argue whether it's an allowable policy.
David Previant: No.
Felix Frankfurter: The question is, wasn't this a baseless and, therefore, an arbitrary finding that it did come within the policy?
David Previant: Yes.
Felix Frankfurter: Am I wrong about that?
David Previant: No, Mr. Justice Frankfurter, you're right. What I am seeking to do here inept way is to emphasize the fact that that is the only issue and that we should not be detoured from that issue by appeals that had been made by the respondents here with respect to other policies which might be applied, or the strength of a labor union, or the growth of a labor union, or change of economic circumstances. That is the only issue here.
Felix Frankfurter: All right.
David Previant: And, we say, in considering this record, this Court is not bound by the conclusions of the Wisconsin Supreme Court with respect to the purpose of the picketing based upon undisputed facts in the record. We say that that is not a finding of fact. It is a conclusion of law. It is, at most, a mixed finding of fact of law and that this Court has traditionally asserted its right to draw its own conclusions whereas, here, the facts are undisputed. We say that even if it may be considered a finding of fact, as distinguished from a conclusion or inference of law, that it's still subject to independent review and evaluation here because it involves a claim of first rank and that's his rights under the First Amendment. That was decided, we say, by this Court not only in the other civil liberties cases involving coerced confessions or discrimination in the empanelling of juries, but was decided by this Court in the very picketing cases which have previously been before this Court, and I refer to Thornhill, Meadowmoor, and Graham in which this Court said so. We think there's one other consideration which this Court must give in determining whether or not the inference or the conclusion drawn from Wisconsin is a valid one and, that is, we believe, the presumption which would ordinarily prevail in favor of state action does not operate when, as here, a substantial claim is made to First Amendment rights. We say this normal presumption must yield because of the presence of other considerations, other than the comity between state and federal government. The freedom of expression, under the decisions of this Court, is the rule. The restraint is the exception and any doubt, we say, under the decisions of this Court, must be resolved in favor of the fundamental right. Where they had at least --
Felix Frankfurter: Isn't that a settled document of this Court, Mr. Previant?
David Previant: I think it's settled. I think there's some --
Felix Frankfurter: Well, that's at --
David Previant: -- I think there's some question about the language to be used in describing that situation. I appreciate that some of the Justices feel that they are in a preferred position. I appreciate that some of the Justices feel that they have a momentum for respect. I think, to quote Justice Frankfurter's language, but I think, in any event, all of you have agreed that they are entitled to a great weight -- a sufficient weight to overcome the presumption of constitutionality. I think where the figure of agreement is that there is no presumption of unconstitutionality in examining the statute. Now, we do not so here assert that there is a presumption of unconstitutionality in the action taken by the State here through its judiciary.
Felix Frankfurter: What you're saying -- you're saying anymore or you're contending for anymore that, when we deal with freedom of speech, we should go slow?
David Previant: I think it's a little bit more than that.
Felix Frankfurter: A little bit more. All right, let's not -- this is --
David Previant: Right.
Felix Frankfurter: I don't think -- see why I should put on you the burden of difference of that --
David Previant: Well, we say that -- well, certainly, under the decisions of --
Felix Frankfurter: Or simply warrant a caveat against the notion that there is a principle of law that, presumptively, things that deal with freedom of speech have to be justified. Go on.
David Previant: Well, all right. Well, we do say that, under the decisions of this Court, no matter what the test the Court may have applied, the Court has made it fairly clear, it seems to me, that there is a heavy burden upon those who would justify the restraint to prove the basis for that restraint, and that you need clear unequivocal and convincing proof.
Felix Frankfurter: You know, if you put it that way, then you come out with the result that you want to come out with.
David Previant: Well, I think I'm coming out with what this Court has adopted as its own test.
Felix Frankfurter: I don't mean you. I mean anyone who puts it that way comes out with that result.
David Previant: Well, I --
Felix Frankfurter: All right.
David Previant: I'm quoting what I believe are the --
Felix Frankfurter: Yes, I know but there are other things you could quote, too, you know.
David Previant: Well, again, I don't --
Felix Frankfurter: (Inaudible)
David Previant: -- suppose we're going to get into an argument on semantics as to what is --
Felix Frankfurter: It isn't semantics for me.
David Previant: Well, all right. At least, the Court has agreed also that there is required a solidity of evidence. In other words, if you're dealing with these rights, whether you say go slow or whether you say the burden has shifted or whether you say the presumption has shifted, you must have something in the record more than the various kind of an inference based upon speculation or remote possibilities.
Felix Frankfurter: But the judgment --
David Previant: Certainly --
Felix Frankfurter: -- of different judges on the same set of facts is also something in the record.
David Previant: Yes, and we say that, on this state of facts, here's a quote that made this -- made a completely opposite judgment --
Felix Frankfurter: This Court has done that, too.
David Previant: -- on the identical --
Felix Frankfurter: And, maybe the later judgment is a wiser judgment, where it only means just as much to be respected.
David Previant: I think that more frequently happens concerning questions of law than it does concerning conclusions to be drawn from undisputed facts, Your Honor.
Hugo L. Black: May I ask you a question to get myself clear. You say the only thing we have to consider here is whether there was any right to draw an inference that this statute was violated, Number 111.06 (2)(b). You -- you agree that the statute is valid in saying that there can be no picketing to coerce, intimidate, or induce an employer to interfere with his employees in enjoyment of their legal right.
David Previant: That is the effect of the statute, yes. And we don't quarrel with that policy.
Hugo L. Black: You don't quarrel?
David Previant: We do not.
Hugo L. Black: And, you say your only quarrel is that they found the statute was violated with inadequate inferences -- inadequate evidence to support the inferences. In what is it short, do you say? Do you say there's no evidence to show that they coerced, there's no evidence to show that they intimidated, no evidence to show the purpose to induce, or that there's a failure to show that the purpose was to interfere with some of the employees in enjoyment of their legal rights?
David Previant: That's true.
Hugo L. Black: Which one? Now, what isn't shown here? What does it fail to show?
David Previant: Well, the record fails to show any -- any evidence that there was a purpose here to compel an employer to violate the rights of his employees.
Hugo L. Black: You mean that the purpose to compel an employee to -- by coercion, intimidation, or inducement to interfere with the employee's right to do what?
David Previant: Not to join this labor union.
Hugo L. Black: And, that's your whole basis of your argument.
David Previant: That's right. We say that the employee has a right not to join. We say that the employer may not coerce him in that right not to join. We say the Union may not coerce the employer to coerce the employee in his right not to join. And, we say there is not one single fact in this record from which a reasonable inference may be drawn, from which a finding may be made, that the picketing, under these facts and under these circumstances, was for the purpose of coercing the employer to interfere with the rights of his employees.
Felix Frankfurter: Now, would it bother you, or maybe you have said it's enough for your satisfaction but it's not enough for mine yet, to state in summary what is this evidence and then tell us what effects --
David Previant: Yes, yes.
Hugo L. Black: That was your point, isn't it?
David Previant: That's the point. The evidence is only this. A solicitation of nonunion employees by representatives of the labor union and a discussion with them of the advantages of organization, followed by peaceful picketing with a truthful banner at the site at which these nonunion employees are working, unaccompanied by any threats, violence or intimidation, unaccompanied by any demand made upon the employer to enter into a contract with the union or to interfere with the rights of his employees not to join or to join the union.
Hugo L. Black: What was the demand? Does it show?
David Previant: No demand. There was never any demand made upon the employer, never any discussion with the employer with respect to this matter. The Union confined itself to the solicitation of the employees and to picketing when the employees refused that solicitation.
Hugo L. Black: Well, was -- was anything more enjoined in the marching around? What -- what is enjoined?
David Previant: Picketing at or near the place of the dispute, the place of employment.
Hugo L. Black: That's --
David Previant: Displaying a standard --
Hugo L. Black: Was that on a highway, was that on a street or --
David Previant: On a public highway, County Trunk P, adjoining the place of employment.
Hugo L. Black: And what did they do, marched backwards and forward --
David Previant: That's all they did.
Hugo L. Black: -- running around or what?
David Previant: They marched at the entrance which was a private road leading into the gravel pit, the private road led off of the public highway.
Hugo L. Black: Is it against the law in Wisconsin or are they held as against the law to march backwards and forwards on the highway?
David Previant: No, there's been no such suggestion in this case and there's no law to my knowledge that would make it unlawful.
Hugo L. Black: What you say is that the whole evidence is that they marched backwards and forwards. They had placards?
David Previant: They had a placard.
Hugo L. Black: Is it against the law of Wisconsin or is it claimed to be against the law of Wisconsin to march backwards and forwards with placards?
David Previant: Not per se.
Felix Frankfurter: What did the placards say?
Hugo L. Black: Yes, what did the placards say?
David Previant: The placard said that the employees at this establishment are not 100% affiliated with the A.F.of L.
Hugo L. Black: Was that all they ever had on them?
David Previant: That's all the sign ever said.
Hugo L. Black: Is there any evidence or any agreement that they ever said anything else to the employer, except what was said -- employer, except what was said on the placard?
David Previant: Never any connection with the employer at all. Never any approach to the employer, never any discussion with him.
Hugo L. Black: Did the Court point out in what way that coerced, intimidated, or induced them to do that, or what is the argument on that?
David Previant: Well, the argument runs something like this as we read the opinion. You couldn't have been picketing to -- to persuade these employees to join the Union because you have already solicited them and that solicitation was unsuccessful. You couldn't be picketing to inform the public because not many people travel this road. Therefore, we think you are picketing as a signal so that anybody who wanted to make a delivery and who might be sympathetic to your cause would not go through the picket sign.
Hugo L. Black: What that -- is that included in this -- what the statute forbid?
David Previant: No, it does not. The statute --
Hugo L. Black: Well, what --
David Previant: -- does not forbid that.
Hugo L. Black: -- what is with reference to the particular thing here?
David Previant: Well, let's follow --
Hugo L. Black: By seeing or --
David Previant: All right --
Hugo L. Black: -- intimidating the employer further to get him to do it. I don't know what --
David Previant: This is -- this is the chain of reasoning. If you are picketing as a signal to a deliverymen, then you must be picketing to hurt the employer. If you are picketing to hurt the employer, it must be to compel the employer to do one of two things, either tolerate the picketing or violate the law to get out from under. Therefore, on that chain of reasoning and logic, we now go back to the initial picketing and find it is to accomplish this unlawful purpose of compelling the employer to violate the State statute. We --
Hugo L. Black: Which would be to compel them to join a union they didn't belong or wanted to belong to?
David Previant: That would be the violation.
Hugo L. Black: (Inaudible)
David Previant: That would be the violation, Your Honor. That's right.
Felix Frankfurter: As I understand you to say, that there was no demand for any specific wages, hours, or conditions of employment?
David Previant: No.
Felix Frankfurter: So that, this --
David Previant: There was no --
Felix Frankfurter: This concerned merely, abstractly stating it, I don't mean to carry any implication myself, this concerned merely the absence of the affiliation of the employees of this plant, of this enterprise, belonged to the union. Is that right?
David Previant: Well, yes. There was a discussion with respect to the advantages of unionism but that discussion --
Felix Frankfurter: But, I mean, couldn't anybody --
David Previant: -- took place between the employees and the union representative.
Felix Frankfurter: There was no specific demand on the employer.
David Previant: None whatsoever.
Felix Frankfurter: Except in relation to -- I mean to use the neutral phrase.
David Previant: Yes.
Felix Frankfurter: Except in relation to unionization. Is that right?
David Previant: No, there was never any demand on the --
Felix Frankfurter: No.
David Previant: -- employer, Your Honor.
Felix Frankfurter: I don't --
David Previant: Never any discussion with the employer.
Felix Frankfurter: No, but so far as the picketing --
David Previant: Yes.
Felix Frankfurter: -- and as Justice Black has developed, the picketing must have had some purpose. It wasn't a --
David Previant: Surely, it did.
Felix Frankfurter: -- Charivari. It wasn't a Mardi Gras. It had some industrial objective, didn't it?
David Previant: That's true.
Felix Frankfurter: And, the industrial objective was to get them to join the union. Is that right?
David Previant: That -- well, the industrial objective was to protect standards. In the protection of the standards, joining the union would be one way of doing it, certainly.
Felix Frankfurter: Well, but they were -- that was their aim, to protect standards by being a union. That's what you and I know to be --
David Previant: Well -- it was, surely.
Felix Frankfurter: -- one of the reasons for unions, one of the appropriate necessary, from my point of view, but is that right, that --
David Previant: That's right.
Felix Frankfurter: -- there was no demand for any specific changes in the conditions of employment?
David Previant: Made upon the employer.
Felix Frankfurter: Employer, not at all?
David Previant: That's right.
Felix Frankfurter: And that there was just this mode of communicating to whomsoever it was communicated that the employees in this enterprise didn't belong to the union.
David Previant: That's right. It's just that -- that simple. Now, as I say, the chain of reasoning --
Hugo L. Black: And what you are saying then in effect is, isn't it, that they have construed their state statute on the facts of this case in forbidding members of the union to advertise the fact that they want people working there to join the union?
David Previant: Yes. Well, that would be the net result. Actually, the --
Hugo L. Black: And, if that's the -- you are saying that if a statute were written out in that language, as the way they have applied it, that it would violate one?
David Previant: Well, now --
Hugo L. Black: In other words, --
David Previant: I think we're --
Hugo L. Black: -- if they hadn't --
David Previant: Excuse me.
Hugo L. Black: -- if they had put in the statute here that it shall be unlawful against the law of the State of Wisconsin for men to invite other people to join the union and to publicize that fact, what would that statute violate?
David Previant: It would still violate the First and Fourteenth Amendments.
Hugo L. Black: That's your claim here, that --
David Previant: Well --
Hugo L. Black: Your claim is, as I understand it, from what you said, the evidence shows they did no more than that.
David Previant: That's right.
Hugo L. Black: Therefore, they've applied the statute in such a way that it makes it unlawful for men to invite others to join the union, privately or publicly?
David Previant: Yes, but we are not in a position, Mr. Justice Black, of challenging the second kind of a statute which you -- which you say this might be result in. We are challenging here the application of a valid statute.
Hugo L. Black: I understand that.
David Previant: We don't want to --
Hugo L. Black: But, if the Court --
David Previant: in this case --
Hugo L. Black: -- if the Court construes it as meaning that, we would be bound by the State's construction of the meaning of its own statute. What you're saying is our understanding is that that statute as applied by them, meaning that they interpret it to authorize that --
David Previant: Except --
Felix Frankfurter: -- forbids --
David Previant: Yes.
Felix Frankfurter: -- forbids people to -- some members of unions to invite others to join publicly.
David Previant: Well, we would rather put it this way, Your Honor. We would rather say that the net result of this decision is to completely set with any vitality the holding of this Court that there can be a labor dispute even though the employees are not in the employment of the employer because, actually, what they have said here --
Hugo L. Black: Why do you want to get around to what a labor dispute is when you are saying that, here, they have forbidden, maybe you're right or wrong --
David Previant: Yes.
Hugo L. Black: -- that, under the facts here, you -- they have to limit what they are saying here that it's unlawful in Wisconsin for union men to invite others to join the union publicly.
David Previant: Well, they have done it in a much more subtle fashion, Your Honor.
Hugo L. Black: Whatever way they've done it, is that what you're claiming they've done?
David Previant: Well, that is the net result.
Felix Frankfurter: Well, by “public” you don't mean that -- that this is the same thing as putting an ad in the paper or having a whole article written by friendly people.
David Previant: Well, we think it is.
Felix Frankfurter: By “public” do you mean in this way, -- this public way?
David Previant: We think it is. We appreciate that this Court has felt otherwise. We believe that it is, actually, a public advertising, whether --
Felix Frankfurter: What I'm --
David Previant: -- whether it's --
Felix Frankfurter: I'm not --
David Previant: -- there or in the press.
Felix Frankfurter: I'm not questioning the public aspect. This is public but so is an ad in the -- in the Milwaukee Journal public.
David Previant: Yes.
Hugo L. Black: Well, has this Court held otherwise, in what case?
David Previant: Otherwise, in what, Your Honor? Well, this Court has indicated --
Hugo L. Black: That has, left and right, where it's lawful to march backwards and forwards or where a person could be that is less lawful for him to invite somebody to join a union under those circumstances.
David Previant: No. No, this Court has not held that it was less lawful in that circumstance. This Court has held that, in some circumstances, the usual attributes or the usual protections which have been given to speech as evidenced by newspapers or by film or by pamphlet, does not extend completely to the protection that would be afforded to speech which is evidenced by picketing. That's what this Court has done.
Hugo L. Black: Well, of course, some members of the Court have drawn a difference between marching backwards and forwards as an element of picketing and publicity. And, here, you say that aside from the one thing which has been found, which you say is not supported, it's perfectly lawful to march up and down in front of their bills.
David Previant: Yes.
Felix Frankfurter: Well, I had supposed that all members of the Court had agreed that it isn't enough to say that -- that marching up and down as an abstract proposition doesn't settle cases. That you may march in such numbers or under such circumstances or your placards may say things which you might say in the newspaper, and it would be a difference. I had supposed we all have said that because decision had been unanimous on that point.
Hugo L. Black: I don't think I've ever said it.
Felix Frankfurter: We've all --
Hugo L. Black: He doesn't know it.
Felix Frankfurter: Well, we've -- we've outlawed mass picketing, haven't we, Mr. Previant?
David Previant: Yes, you have.
Felix Frankfurter: Well --
David Previant: You've restrained it --
Felix Frankfurter: So that, already you can claim marching is constitutionally protected under all circumstances, have we? What do you think we have? What do you think?
David Previant: Well --
Felix Frankfurter: You wouldn't be here saying you can have mass picketing under the First Amendment, would you?
David Previant: Well, I know what this Court has done with respect to mass picketing, with respect to picketing for an unlawful purpose, with respect to picketing enmeshed with violence, with respect to picketing outside of the industrial dispute.
Felix Frankfurter: Well, all I'm suggesting --
David Previant: Yes.
Felix Frankfurter: -- is that the unlawfulness may be derived from conditions with reference to picketing which would not be unlawful if in the context of a newspaper.
David Previant: That's right.
Felix Frankfurter: All right.
David Previant: And that is the distinction which I said this Court has drawn.
Hugo L. Black: That's a distinction which I said, “I haven't drawn.”
David Previant: Well, it's a distinction which I've also said I do not agree with, but it is --
Felix Frankfurter: Well, that's --
David Previant: -- there, nevertheless.
Felix Frankfurter: That's --
David Previant: We're confronted with it.
Felix Frankfurter: I suppose if one says the Court has drawn, one means the Court.
David Previant: Yes. But, as I say, we're confronted with that situation and we do not here seek to reverse that holding, nor to quarrel with it, nor in any way to say that it should not be applied here.
Felix Frankfurter: You have made it as clear as I think it can be made, if I may say so, Mr. Previant, what the very narrow and circumscribed position is, which you are urging here.
William J. Brennan, Jr.: Well, Mr. Previant, may I ask just this one question.
David Previant: Sure.
William J. Brennan, Jr.: Did you make reference or, perhaps I have to put it this way, is there any finding that this picketing was purposed to shutoff deliveries to the employer?
David Previant: I'm sorry?
William J. Brennan, Jr.: Was there any finding that this picketing was purposed, in part at least, to shutoff deliveries to the employer because the operators of vehicles and members of the same picketing union would not cross the picketing line?
David Previant: It was the conclusion of the Wisconsin Supreme Court in the second opinion that that was the hope or the intent of the Union. That was the conclusion drawn from this undisputed facts by the Wisconsin Supreme Court --
William J. Brennan, Jr.: Well --
David Previant: -- that the picketing was a signal for that purpose.
William J. Brennan, Jr.: I don't follow what you mean by conclusion. Is that to say it was not a finding but something else?
David Previant: What in -- well, it's not a finding of fact. I say it's a kind of conclusion that is reviewable here. It's an inference which we say could not have been drawn from this matter.
William J. Brennan, Jr.: Well, now, let's -- let's suppose it could have been drawn.
David Previant: Well, all right.
William J. Brennan, Jr.: Then, what would your position be?
David Previant: But -- our position then, certainly, is that a signal is known as communication in any other form.
William J. Brennan, Jr.: Well, now, what other -- what I gather -- I understood you to mean by conclusion or signal or whatever the word is, that, in that way, pressure was exerted upon the employer, which I think you said earlier would be unlawful pressure, to induce his employees to join this union so that the normal operations of the business could resume.
David Previant: Well, if we were to assume that one of the objects, one of the things that at least the Union foresaw was that this would act as a signal, it would not flow from that that, because some person, the employer in this case, might violate the law as the consequence of what is agreed to be the exercise of a constitutional right, you can then reason backward from a subjective reaction of the employer to the consequential damage and say that the action, therefore, in its beginning was unlawful.
William J. Brennan, Jr.: No, what I want to get to -- what I want to get to is if, in fact, this picketing was in part purposed to shutoff deliveries to this employer and so affect the conduct of its business that it would, in an effort to relieve itself, put pressure on the employees to join this Union. Would you have a case?
David Previant: Well --
William J. Brennan, Jr.: Now, on that hypothesis, --
David Previant: No.
William J. Brennan, Jr.: -- would you have --
David Previant: No.
William J. Brennan, Jr.: -- a case?
David Previant: Well, on that hypothesis, I don't have a case because you have assumed what has to be proven here and which was not proven. You have assumed in your statement that, number one, it was intended solely to be a signal. Number two, that the signal was responded to. Number three, we knew it would be responded to. Number four, we knew if it were responded to, it would hurt the employer. Number five, we knew that it would hurt the employer, he would violate the law. Therefore, we intended to hurt the employer to violate the law. Therefore, we go back to the signal and say it is no longer constitutionality protected. Now, it's that kind of a priori reasoning, non-sectarian reasoning, upside down or backward reasoning that motivated the Court, in our opinion, in this case.
William J. Brennan, Jr.: Well, if you --
David Previant: To say that picketing was --
William J. Brennan, Jr.: Of course, if you had taken the newspaper advertisements or had an article written, you probably would not have accomplished shutting off deliveries to this employer, would you?
David Previant: We may or we may not, and I don't know that that's the test, whether effectiveness is the test. It may be that, in a particular community, the State of organization is so high that even a newspaper ad might induce a great many union people not to go to the store or to make deliveries to the store or to the gravel pit. It may be, as in a small community like Waukesha County, that neither picketing, nor advertising, nor radio, nor movies would persuade anybody not to continue to do business with this employer or not to continue to go to that employer's place of business. But, I say that our right to picket, a constitutional right, if you please, does not depend upon such slender rights that we're going to look to the effectiveness, that we're going to look to the subjective results, and then reason backwards from that point to determine whether, in the first instance, we were unlawfully purposed when placed that picket or we were malicious or we intended deliberately to run somebody out of business in this way or compel it in the alternative to violate the law. And, that is what Wisconsin did to us here. They made that conclusion on the record which, in our opinion, is completely excepted or completely lacking in any justification for that kind of a conclusion.
Speaker: Would it have made any difference to your case if there had been evidence in the record that the Union had gone to the employer before picketing and politely, without coercion, without threat of picketing, said “we'd like to have your shop organized”?
David Previant: Yes. Yes, it would --
Speaker: That would have made a difference?
David Previant: It would make a difference. Under the decisions of this Court, particularly the Gazzam case, we would then be in the position of, ever having -- after having asked the employer to put his employees into the Union or to sign a contract with us at a time where he was legally inhibited from doing so, nevertheless, to do so and then, because he refused to be picketed, then we have an entirely different picture. It is not the picture that is here at all. That was the picture --
Speaker: Now, to see --
David Previant: -- that was already before this Court.
Speaker: To test the absence of that element that you say deprives a finder of the fact to say that that -- we can infer that from what went on here.
David Previant: Well, I don't know that we're talking here about the absence of elements. There -- supposing we had not engaged in any solicitation whatsoever and merely coldly put out a picket at this particular place. There might be, then, a great deal more basis for drawing an inference that we're trying to put the heat on the employer because we've made glorified effort to interest these people in organization. Supposing we had drop a hint some place down the line to one of the employer's competitors. We're going to make this employer sign the contract and then we picketed, but nothing like that is in this record and that is precisely our point, Your Honor.
Speaker: Well, you wanted to influence somebody.
David Previant: Surely, we did. We were trying to persuade this nonunion people to join our Union. We were trying to advice our friends and our sympathizers that these people were not union, that they were destroying the very standard which we had fought to maintain.
Felix Frankfurter: You're excluding --
David Previant: And, the --
Felix Frankfurter: You're excluding from your desire of persuasion everybody except the employer then. You're -- you're including only the employer from your desire of persuasion, is that it?
David Previant: Well, Mr. Justice Frankfurter, we had no right to persuade an employer and I don't believe that a Court should draw the inference that we're trying to make the employer commit an unlawful act.
Felix Frankfurter: That's a question of the processes of the human mind of a decent piece of reasoning or is an allowable piece of reasoning, not decent, an allowable. If you say you wanted to bring this knowledge home to the employees, to your friends, to employers who have the good sense to be sympathetic with unions that here is a fellow who stupidly doesn't have a union-shop, you wanted to bring this knowledge home to everybody except the employer because, by the law of Wisconsin, you can't bring it home to the employer, is that it?
David Previant: No. I think we're entitled to the assumption that we did not intend for anybody to violate any law. And, I don't think that the inference should be drawn that we did in the absence of evidence to support that inference.
Felix Frankfurter: I think when one begins to talk about violating law and not violating in this area when it's introducing what I believe is an irrelevant and a dangerous implication of moral elements which, for me, aren't there at all. These are very difficult, very subtle, as no one knows better than you, issues in which moral judgments or from which moral judgments ought to be excluded. These are practical things and the Unions are in some difficulty and employers are in difficulty and, if I may say so, judges are in difficulty of knowing exactly what the law is.
David Previant: Well, it is for that reason, Your Honor, that we did not agree, or that we fought, or at least litigated the problem of the unlawful purpose for just that reason. Now, what has happened is this. That, once this Court announced its unlawful purpose doctrine, the courts that formally did pay at least lip service to the early decisions of the Court are stirring around in these records to find that unlawful purpose. Now, without intending any disrespect for the Wisconsin Court, we say that's exactly what it did on the rehearing in this case. It did find, on the record of what you first said there couldn't possibly be such finding.
Felix Frankfurter: Nothing happened between June and October to enable them to look for that to forbid it --
David Previant: Surely, what --
Felix Frankfurter: -- or he did?
David Previant: What happened is shear speculation. I don't know what happened.
Felix Frankfurter: I -- I'm not unaware of the point you've just made and that's made with a good deal of vigor in the amicus brief. And, I have, in my day, expressed my feeling on this subject. It might need conviction which has been changed, and we're dealing here with a very narrow question of constitutionality, as I need not tell you.
David Previant: Well, I think, in view of the fact that I have just about exhausted all of the time and there might be something I want to say in the remaining five minutes, I will sit down.
Earl Warren: You may reserve your time, Mr. Previant.
David Previant: Thank you.
Earl Warren: Mr. Lamfrom.
Leon B. Lamfrom: If the Court please, I would like to just -- for the enlightenment of the Court, restate a few things about the pleading and the manner of disposing of the case on the pleading. And, I should like -- what I think of it, Mr. Justice Brennan, to say to you that the Court -- the Wisconsin Supreme Court which determined that it had the power to make findings of its own on a record of this kind, where there was no oral testimony, did find in effect that one of the purposes of the picketing was to cut off the transportation facilities of the employer. I may call your attention to page 35 of the transcript on that point. In the middle of the page, the Court says, this is its second opinion, “the question then arises whether the defendants violated Section 111.06 (2)(m) of the statute and, thereby, engaged in picketing for an unlawful purpose. The trial court refused to find as plaintiff requested that the picketing on plaintiff's premises had been engaged in for the purpose of coercing, and so forth, to become members of the defendant labor organization and for the purpose of injuring the plaintiff in his business of his refusal to, in anyway, interfere with the rights of his employees to join or not to join a labor organization.” They go on to say here, “We are of the opinion that the finding should have been made picketing may be more than free speech when it is conducted as it was in this instance, upon a rural highway at the entrance to a gravel pit for an exceedingly small number of possible or probable patrons of the owner's business might pass and be influenced by the Union's banner. It is more than the mere exercise of the right of free communication.”
Earl Warren: Is there anything in the record to establish that finding?
Leon B. Lamfrom: In the record, yes. There was a finding by the trial court that the truckers refused to deliver or take away materials and things that were needed in the business.
Earl Warren: No, that isn't what I mean. Is it -- is there anything in there to show that this was conducted upon a rural highway at the entrance to a gravel pit for an exceedingly small number of possible or probable patrons of the owner's business might pass and be influenced? Is there anything in the record there?
Leon B. Lamfrom: There are allegations in the complaint, if Your Honor please. Which --
Earl Warren: Were they controverted?
Leon B. Lamfrom: Which I think support that position entirely.
Earl Warren: Were they controverted with respect to --
Leon B. Lamfrom: No, they were not controverted, not in any manner of shape or form. We must remember, if you please, the Wisconsin Supreme Court undoubtedly took judicial notice of the situation which was existing here with reference to the geography of the State. The premises in which this gravel pit was conducted were described by meets and bounds as in the town and readily intelligent to the Supreme Court judges of the State of Wisconsin as to what the locus in Court was, and that is taking into consideration in their making these various findings which they themselves made as a result of the motion and argument on the rehearing.
Earl Warren: Was there anything in the evidence to show how many patrons might go by that way or what the traffic is or what --
Leon B. Lamfrom: No, there is -- there is no direct evidence on that point.
Earl Warren: Well, how did they arrive at this finding? It's a rather important finding, it seems to me.
Leon B. Lamfrom: Well, I think they arrived at that finding, Mr. Chief Justice, upon their own knowledge of the situation as it existed in that locus because that is a sort of a trunk -- county trunk road, off even the -- off the main highway and is in a distinctly rural situation where it is not used by persons who are normally engaged in business back and forth.
Earl Warren: But wouldn't they have to have some evidence and know what possible or probable patrons of the owners business might pass that way? Wouldn't they have to know something about that in order to make such a finding?
Leon B. Lamfrom: My only answer to that is, and was indicated a moment ago, I think that they -- they knew what the situation there was, just as I --
Earl Warren: They knew --
Leon B. Lamfrom: -- knew what the --
Earl Warren: -- they knew his business?
Leon B. Lamfrom: I beg your pardon?
Earl Warren: They knew his business, the character of it and how --
Leon B. Lamfrom: I am very positive that, while they didn't have any direct evidence on the subject because of the number of people that might pass there, that they were surely conversant with that site in the rural district in which it was located.
Earl Warren: Well, could they decide -- decide the number or probable number of people who would pass that way and be influenced without any evidence in the record on the subject?
Leon B. Lamfrom: Well, let me say this in answer to that. You say could and I say they did.
Earl Warren: Well, I see they did.
Leon B. Lamfrom: Yes.
Earl Warren: I just wondered what to think about it.
Leon B. Lamfrom: And, if you take that into consideration as only one of the elements which led the Supreme Court of the State of Wisconsin to come to the conclusion that it came to in the -- in the second opinion, I would like to --
Harold Burton: Was there any controversy about that fact about the number of people that passed and that the location of this area, any dispute about it on -- from the other side?
Leon B. Lamfrom: No.
Earl Warren: No? Well, i thought that was the very thing. I so --
Leon B. Lamfrom: I don't remember that it was disputed.
Earl Warren: I so read the briefs.
Leon B. Lamfrom: I don't remember that it was disputed. There's nothing in the record to show that it was disputed. May I --
Earl Warren: Well, it wouldn't be in the record if it was first mentioned in the second -- second decision of the Supreme Court, would it?
Leon B. Lamfrom: Well, that's true. That's true. May I just call your attention on page 30 of the transcript.
Felix Frankfurter: Page 30 of what?
Leon B. Lamfrom: Page 30 of the transcript. I would like to, if I may, read just what the Court said in the first paragraph of its opinion to indicate to Your Honors here the basis upon which it made the final holding in this case. We have concluded that we were in error in our original determination of the issues in this case and, therefore, withdraw the opinion on the mandate previously entered. We are convinced that, in our study of the issues presented, we gave too little consideration to the fact that there are limitations upon the right of free speech and that the prohibition of action against free speech is not intended to give immunity for every use or abuse of language. We gave him sufficient notice to the fact that free speech is not the only right secured by our fundamental law and that it must weighed here, for instance, against the equally important right to engage in a legitimate business, free from dictation by an outside group of the right to protection against unlawful conduct which will or may result in a destruction of a business, that both the right to labor and the right to carry on business are liberty in property. We left out of calculation the rule that the Court is to consider not only the established facts, as they appear in the record, but that it should also give attention to the inferences reasonably and justifiably to be drawn there from. Now, in connection with that, I would like to point out to you in a sort of an itemized way the different elements that entered into the Court's conclusions and those are contained on page 49 of our brief. It sums up the bases, the factual bases upon which the Court came to this conclusion. The title of -- the title is the right to engage in a lawful business free from outside interference is also a constitutionally -- is constitutionally protected. When the Supreme Court handed down its second opinion upon rehearing, it recited the following principles among others which, in part, have motivated it to reverse its first decision and to which it had previously given too little consideration. And, those are the facts which I call to Your Honor's attention to in the beginning of the decision. There are some other considerations which commence with (e) on page 49 that, in considering the right of freedom of speech, it must be recognized that the right is to be evaluated with the right of the many who have no interest whatsoever in the relationship between the defendant union and those who may seek to acquire as members. That, by its very nature, every right is related to a duty to exercise so as to cause a minimum of harm to another, least of all to an innocent bystander, that the right of freedom of speech may not be considered a part from that of society to maintain order, that when one who seeks freedom -- that one who seeks freedom may not wholly ignore his neighbor's right to it. Now, we have had quite a lot of controversy in the labor relations and in the legal actions that flow from them about recognition picketing and organizational picketing. Some inquiry from, I think, Mr. Justice Clark --
Earl Warren: I think it was Mr. Justice Brennan.
Leon B. Lamfrom: Well, it was directed to that point as to whether or not there is a difference between picketing which results from a demand upon the employer to recognize it as a bargaining agent and picketing which is indulged in without any demand or communication between the Union and the employer. There has never --it has never seemed to me that there is any difference in that kind of an approach because the objectives, whether it is so-called recognition picketing or so-called organizational picketing, is the same, namely, to achieve a status whereby the Union gets the representation for the employees involved and proceeds along the normal lines of the sequence of Union representation to attempt to get some kind of a collective bargaining contract. Now, what was the employer here, under the law of Wisconsin, up against, regardless of whether this was organizational picketing or recognition picketing? Our statutes provides, the Wisconsin Employment Peace Act which have been before this Court a good many times in other cases, that it shall be an unfair labor practice for an employer to bargain with the representatives of employees who do not represent the majority. If this Union had come to the employer in this case, not representing a majority, and the employer would have bargained with it, he would have been guilty of an unfair labor practice under the law of the State of Wisconsin.
Hugo L. Black: If what?
Leon B. Lamfrom: An unfair labor practice.
Hugo L. Black: I say, if what. I didn't quite get your --
Leon B. Lamfrom: If an employer, Mr. Justice Black, bargains with a union, it does not represent a majority of the employees involved in the Union, he is guilty of an unfair labor practice. Now, obviously, this employer must have known that this Union didn't, in any manner, represent the majority of the employees, so that if he had even desired to bargain, he would have been guilty of an unfair labor practice. Now, what was the other alternative for him to do? He was confronted with the picketing which had the same effect the moment that picketing -- the picket was placed there, it had the same effect upon his business situation as a home, a house, would have if you put a sign on the door, there is a hysteria here. There is no difference from the moment that that picket got there, as far as this company was concerned, as to deliveries of supplies in and finished product out, it was quarantined. You must remember that we have here the Teamsters Union. The Teamsters Union, and I have no doubt that it was perfectly legitimate for the Supreme Court of Wisconsin, if it did so, to take judicial notice of hot cargo clauses, anti-picket crossing line clauses. The employer was, from the time that that picket was placed there, cut off from the proper conduct of his business.
William O. Douglas: Well, that would be true of any picket line, wouldn't it?
Leon B. Lamfrom: That would be true of any picket line.
William O. Douglas: Yes.
Leon B. Lamfrom: Yes, but --
William O. Douglas: So, why do you say --
Leon B. Lamfrom: They claim they weren't -- Mr. Justice Douglas, they claim they were not picketing this employer.
William O. Douglas: But you just say that the -- the existence of a picket line itself is not to bring coercion on the employer. What happens to cases like Swing and the others where we upheld picketing?
Leon B. Lamfrom: There was no dispute here between the employer and the -- and these three unions. They claim that they were there for the purpose of influencing the employees.
William O. Douglas: I understand.
Leon B. Lamfrom: That --
William O. Douglas: The Court found that the purpose was to coerce the employer.
Leon B. Lamfrom: Yes, the Court found that.
William O. Douglas: I say if you can infer that just from the mere fact of picketing, why -- why can't you infer it in every case what this picket line has shown?
Leon B. Lamfrom: Well, I think there are a good many cases --
William O. Douglas: What kind of a case would you say would be saying the doctrine that you are arguing before was adopted? When would you think it would be permissible?
Leon B. Lamfrom: Do you mean, when a picketing would be permissible?
William O. Douglas: Yes.
Leon B. Lamfrom: Well, I think it would be permissible in any controversy between an employer and a Union where the objective of the Union was lawful such as wages, hours, and working condition or any facet, lawful facet.
William O. Douglas: But your argument would outlaw all organizational picketing.
Leon B. Lamfrom: Under the Wisconsin statute, and I think it should be. I think, here, you yourself, in one or two opinions and some of your writings, have indicated the -- that picketing is per se more than freedom of speech. That it has coercive elements in it which distinguish it from freedom of speech and make it something considerably more. And, now, what happened here, if Your Honors please, was a realistic dramatization of modern labor relation. It is all right to use the word “peaceful picketing” and “peaceful persuasion.” That it is all right to use the word “organizational picketing” or “recognition picketing” to distinguish between certain rights which are conceived by some courts and some writers and conceived by more courts and more writers not to have any difference. But, here was a drama that was actually taking place. The actions in it spoke louder than the words. They had -- contrary to counsel's statement, the Union had been, for over a period of a year, at various intervals, doing their best, I presume, as the fact show here, to persuade these employees to join the Union. And, these employees, as the trial court expressly found, the express finding had no -- had no desire and made that manifest for the Union to join the Union. Now, the arts, the very keystone, of the Wisconsin Employment Peace Act is the freedom of employee choice, and all the allegations and all the unfair labor practices which are set out in that Act, and there are many of them, both on the part of employees and the unions and on the part of employer, are designed to protect that freedom of -- freedom of choice on the part of the employee, whether or not they want to be members of a union or whether or not they don't want to be a member of a union. And, one of the unfair labor practices on the part of employees is that, where the employees exert pressure upon the employer to exert pressure upon the employee --
Felix Frankfurter: You mean, the employer --
Leon B. Lamfrom: -- to join --
Felix Frankfurter: Where the employees coerced the employer to coerce his employees.
Leon B. Lamfrom: That's right.
Felix Frankfurter: Now as I understand it, the sign between you and your adversary here is very narrow there. They say that no evidence at all which you can find that their purpose was to coerce the employer to coerce the employees.
Leon B. Lamfrom: Well, Mr. --
Felix Frankfurter: They say if that evidence is there, --
Leon B. Lamfrom: That's right.
Felix Frankfurter: -- you have a case.
Leon B. Lamfrom: That's right.
Felix Frankfurter: That's your --
Leon B. Lamfrom: The Supreme Court of Wisconsin found that that was one of the purposes.
Felix Frankfurter: And that's the question as to whether there was any evidence from which that could be found.Of course, in a given a case, we have very strong evidence to show not only a purpose to violate the law, but a constant continuing violation of the law.
Leon B. Lamfrom: That's right.
Felix Frankfurter: On everything it was said on the placards and everywhere else, he says here there is no evidence of that kind on which there could rationally be a finding that there was a purpose here to coerce the employer to coerce the employees.
Leon B. Lamfrom: Well, the mere stationing of the picket under the circumstances and facts which exist in this case show that purpose. There isn't any escape from it.
William J. Brennan, Jr.: Well, suppose there had not been --
Leon B. Lamfrom: I beg your pardon, sir?
William J. Brennan, Jr.: Suppose there had not been -- this isn't my first day in this chair, and maybe this doesn't work. Suppose there had not been these conduct of trucks refusing to cross the picket line.
Leon B. Lamfrom: Yes?
William J. Brennan, Jr.: Would you have had a case?
Leon B. Lamfrom: Well, that's a very interesting question. I would say that, under the circumstances of the locus in call and all the facts which the Graham actually revealed that I simply would have had a case even without that because there would have been some kind of pressure by the mere stationing of that picket, their indication to the employer's premises on the part of the employer to exercise some influence on the employees to sign up, so to speak.
Speaker: Was there any dispute that the Union knew that the effect of its picketing, whatever its purpose was, was to prevent your suppliers from coming across the delivery line, any dispute on that?
Leon B. Lamfrom: Did the Union dispute that?
Speaker: Yes.
Leon B. Lamfrom: I don't think they disputed it, but they disputed the motive or purpose.
Speaker: I understand that.
Leon B. Lamfrom: Yes. They didn't dispute that --
Speaker: They knew that their picket line is being respected and that you weren't --
Leon B. Lamfrom: Well, but --
Speaker: Your adversary said that this morning.
Leon B. Lamfrom: We are in a modern world and we all know how those things operate. And, we all know, I say it without fear of contradiction, that where the Teamsters Union is involved and maybe even where it isn't involved, the stationing of that picket is a message to its members, under conditions which may result in sanction, not to cross that picket line and it's invariably observed.
Felix Frankfurter: Is there a --
Leon B. Lamfrom: Now, here is a --
Felix Frankfurter: Is there a Wisconsin statute which makes it illegal for one person to try to persuade another not to do business with the third?
Leon B. Lamfrom: May I ask you to repeat that question. I didn't quite hear it.
Felix Frankfurter: I'm asking, the Court doesn't seem to have relied on any statute which makes it illegal for one person trying to persuade another person not to do business with a third person. Do you have such a law in Wisconsin? They have not relied on any such law and I'm just -- that seems to be your main reliance.
Leon B. Lamfrom: Well, we have a --
Felix Frankfurter: And, yet, there is that against the law of Wisconsin.
Leon B. Lamfrom: We have a criminal statute in Wisconsin which makes it a crime to injure a person in the conduct of his business --
Felix Frankfurter: But not --
Leon B. Lamfrom: -- by -- I can't say that directly, in answer to that, that the mere attempt to persuade a person not to do business with another person is a crime.
Felix Frankfurter: Now, the peaceful --
Leon B. Lamfrom: But to hinder -- to hinder the pursuit -- it's called “to hinder the pursuit of lawful business,” and I know that if two or more people get together for that purpose, that they're violating a criminal statute of Wisconsin.
Felix Frankfurter: Are you relying on any statute as making this conduct, this particular piece of conduct to which you prefer -- refer, having a picket line there that others would not cross, are you relying on a particular statute which makes that unlawful?
Leon B. Lamfrom: No.
Felix Frankfurter: You do -- do you have it?
Leon B. Lamfrom: We don't have any particular statute which makes crossing a picket line unlawful or --
Felix Frankfurter: Do you have any statute which makes it unlawful, to -- for -- either a picket line or any other way, for one person to try to persuade another not to go into a place of business. You -- the Court hasn't relied on any. It's just --
Leon B. Lamfrom: I -- I think, if my recollection serves me correctly, although I didn't know that was coming up and perhaps I'm not as well prepared on that, I do think we have a statute which makes it a criminal offense under some conditions to attempt to persuade a person not to do business with another person.
Felix Frankfurter: Well, are you able to say that what happened here, let's assume that they would not cross the picket line, are you able to point to any Wisconsin statute or any Wisconsin opinion which makes that unlawful under Wisconsin law?
Leon B. Lamfrom: No, I can't.
Harold Burton: But do you say that to place this picket line amounts to having that effect because it coerces the people or it coerces the employer by placing the picket line and cutting off his deliveries?
Leon B. Lamfrom: Well, Mr. Justice Burton, the employer is between the devil and the deep blue sea.
Harold Burton: That's right.
Leon B. Lamfrom: He either has to forego the permissible conduct of his business, otherwise, or somehow or another make peace with the Union when the union's objective, as they claim, was not against him. He can't survive unless he gets protection from what is, to my mind, from my experience and observation and understanding, the obvious purpose of putting that picket there, no matter what, in semantics, the Unions may say is not that purpose.
Harold Burton: Therefore, you say that the placing of the picket line there tantamount to a violation of Section (b) because it does amount to automatic effects on these liberals to coerce the employer?
Leon B. Lamfrom: I would say so.
Hugo L. Black: Well, you haven't argued that yet before.
Leon B. Lamfrom: Well, yes, I did. I had a question --
Hugo L. Black: I don't --
Leon B. Lamfrom: -- from Mr. Justice Brennan along those lines in which he said, “had this failure to get transportation not taking place, would you still say that the placing of that picket was unlawful?”
Hugo L. Black: Now, you are arguing --
Leon B. Lamfrom: And, I answered yes, I think.
Felix Frankfurter: I understand then that you are arguing now that, although Wisconsin has no statute against this and has never said that it's against the law, it can nevertheless be used as an implication to deprive people of the right of advertising the facts of a labor dispute or that -- to try to persuade to join the Union.
Leon B. Lamfrom: Well --
Felix Frankfurter: Imply a violation of some other law in the fact that they do that.
Leon B. Lamfrom: Because picketing is more than advertising. It has elements in it which are commonly understood by a man on the street that there is some kind of a coercive force resulting from the placing of a picket and especially under circumstances like this.
Felix Frankfurter: Let's see if I understand the course this argument is taking. As I understand you, you say you support the Wisconsin decision on rehearing because they found that this was a violation of Section (b).
Leon B. Lamfrom: That's right.
Felix Frankfurter: And, Mr. Previant says he recognizes the validity of Section (b) but he says there's no warrant in this record for having made such a finding. Isn't that the clash of the argument?
Leon B. Lamfrom: I think that's right. We come here with the findings of a court of high standing recognized all over the country.
Felix Frankfurter: Could you -- have you available, you and Mr. Previant or Mr. Previant, have you available the briefs? Were there printed briefs which preceded this kind of a rehearing before the Wisconsin Supreme Court?
Leon B. Lamfrom: Pardon me, I --
Felix Frankfurter: Were briefs filed?
Leon B. Lamfrom: -- didn't put that quote in my motion.
Felix Frankfurter: Were briefs filed -- were printed briefs filed before the Wisconsin Supreme Court --
Leon B. Lamfrom: Yes.
Felix Frankfurter: -- which preceded and, perhaps, led to the grant of the rehearing?
Leon B. Lamfrom: Yes, I have it here.
Felix Frankfurter: There were printed briefs?
Leon B. Lamfrom: Yes.
Felix Frankfurter: Would you, with the Chief Justice's permission, file those briefs?
Leon B. Lamfrom: You mean --
Felix Frankfurter: Did Mr. Previant have a brief?
Leon B. Lamfrom: You mean briefs in support and against the motion for rehearing?
Felix Frankfurter: Yes.
Leon B. Lamfrom: Yes, I have --
Felix Frankfurter: There were such briefs?
Leon B. Lamfrom: -- I have a copy here.
Felix Frankfurter: Could you leave them with the clerk?
Leon B. Lamfrom: Certainly, I have only one copy here.
Jacob L. Bernheim: Well, I don't have mine but I'd be glad to send them.
Felix Frankfurter: Could that be done quickly, Mr. Bernheim?
Jacob L. Bernheim: I could have them mailed out today.
Leon B. Lamfrom: Do you -- how many copy do you desire? I don't know whether we have enough --
Felix Frankfurter: When will --
Leon B. Lamfrom: -- to make.
Felix Frankfurter: We'll have -- we'll have to make do with one, if you have that. I would like to see the briefs that --
Leon B. Lamfrom: Well, I'll leave it with the clerk, --
Felix Frankfurter: -- came before the Supreme Court of Wisconsin.
Leon B. Lamfrom: -- the one that I have here. I just want to press upon Your Honors, although I know the question of facts that is here, that the Wisconsin has never been a laggard in social and economic progress and in the progress of labor relations, legislation and judicial decisions which have for their purpose, generally speaking, of bringing about industrial peace and economic justice. This Act says that labor relation constitute a three-way street, that they employ -- impose obligations and duties and confer privileges on employees, unions, and employers and, upon those two elements in labor relations, to serve the interest of the public. And, I repeat again that the safeguard that is in that Labor Relations Act or in the Wisconsin Employment Peace Act is the fact that the right of the employee to choose to join a union or not to join a union is the whole keystone of the Act, and that any party to the labor relationship that, in any manner, tries to intimidate, coerce, induce, or force in any manner an employee to make a choice against his will is guilty of an unfair labor practice.
Earl Warren: Thank you, Mr. Lamfrom. Mr. Previant, you have some time left.
David Previant: I'm addressing myself to the question asked from Mr. Chief Justice Warren. There was no allegation and there was no proof with respect to the number of people who travels on this county highway, this country road, or with respect to the number of customers that might be there. It first arose in the Court's decision on the motion for rehearing and we, in a footnote to our brief, point out that there is no evidence to support it. I think the case has been thoroughly canvassed.I just want to point out that there are other alternatives to an employer in this position. Many employers survive picketing very well. Many employers, in fact, increase their business on the patronage of those who, for some reason or other, are not sympathetic to the union's cause. If any, this particular employer might increase his truck fleet to get his deliveries just on the money he may be saving by his employees not being members of the union and not drawing the union wage. And, finally, although we have never ourselves believed that an employer should be anything but strictly neutral in these matters, this Court and the law have indicated that it is not beyond the possibility for an employer to sit down with his employees and to discuss with them, fully and frankly, both the advantages and the disadvantages of organization if he does not, in so doing, either make a promise of benefit to them in exchange for whatever action they may take or to threaten them with reprisal in exchange for whatever action it takes.So, we are not here confined, as the case might indicate, with solely the question that he has either got to yield or go out of business. And, again, I say, the fact that an employer might be inclined to violate the law is applying a subjective test. It's applying a test of the effectiveness of the picket line and should not be used in determining whether or not a right which is of constitutional rank is unlawfully purposed or not.
Felix Frankfurter: May I say, I am cheered by the suggestion that, in Wisconsin, the atmosphere is such that that's a reasonable expectation on the part of the employer.
David Previant: Thank you.