Warren E. Burger: We will hear arguments next in 76-5382 Darden against Florida. Mr. Kalmus you may proceed when you are ready.
Geoffrey M. Kalmus: Mr. Chief Justice, may it please court. My name is Geoffrey Kalmus; I am a partner in a private firm in New York City. I am here representing Willie Jasper Darden. We ask in this case that the court set aside Mr. Darden’s conviction the first-degree murder and his sentence to death cause of gross prosecutorial misconduct during summation. The court has not heard afore in reviewing the state conviction, a held to the prosecutors closing argument, so far transcended the bounds of legitimacy and decency as to constituted deprivation of a dependence Fourteen Amendment rights. Nonetheless it did recognize and Justice Rehnquist’s opinion in DeCristoforo, that prosecution is remarks to the jury, may so infect to trial with unfairness as to make the resulting conviction a denial of due process. Moreover, it is ruled in many other contexts that circumstances of a criminal trial or other sorts of misconduct during it. A may so impair the fundamental integrity of the jury’s determination and deliberations as to constituted denial of due process. We ask therefore in this case that the court apply settle doctrine to vacate a conviction and a jury recommended death sentence infected by willful righteous prosecutorial misconduct. As we see it, if ever a prosecutor’s misconduct in summation can constitute a denial of a fair trial this is such case. I would like first to focus a little bit on the evidence because it is crucial here, it is crucial if the court understand that this was not a case in which the evidence was overwhelming, this was a case in which the jury might rationally and reasonably go either way at the end of the evidence. We think the case was doubtful, we think that the evidence plainly shows that not withstanding the respondents used to the contrary. Now what was the evidence here?
Speaker: What stage of the argument was the challenger objection made for the argument?
Geoffrey M. Kalmus: Your honor there was only one objection taken in the course of the prosecutor McDaniel’s argument and that was rather far along in it and at that point defense counsel stood up and objected to one of McDaniel’s statements that he wished the defendant had been maimed, that his head has been blown off or he had been cut his own throat of which there were a good many such statements. That was the only objection taken the trial judge simply without any discussion said overruled, proceed Mr. McDaniel. Returning to the question of the evidence as it stood at the close of the defense case, there were only three significant items of evidence supporting the prosecutions claimed that Mr. Darden had committed this robbery murder of the man name Terman. Two of the items of evidence were identifications, those by Mrs. Terman who was working in the furniture store when the assailant came in and that of a young man name Mr. Arnold the 16 year old boy who kind of happened in the backdoor while the crime was in progress and was also shot and injured by the assailant. Both of those identifications were shortly challenged at the trial, and both of them I think would put insubstantial doubt. That subject was one in which we dealt at lenghts in our brief because at the time we submitted our brief the identification issue was also one upon which the court had granted cert, I may recall that in early January, so it was limited to the first question presented that at the prosecutorial misconduct. One can judge Mrs. Terman’s identification of the assailant in a few fashions. Number one, she gave a description to the Deputy Sherif right after the crime that bore no resemblance to the petitioner. Number two, she described the assailant is wearing clothing that different markedly from that what petitioner was described is wearing by somebody who had seen him at the seen him scene of his automobile accident which according to the prosecution happened as he was fleeing the crime. Number three, Mrs. Terman never was asked to or in fact identify the petitioner of any kind of a formal line up be it photo or live. Number four, her only pretrial identification in this came into evidence on the direct testimony at trial occurred at the preliminary hearing when the petitioner was the only black man in the court room seated with counsel of the defense table and was -- Mrs. Thurman was asked to point him out and she did and one can judge the reliability of that identification by what she said when she was asked by the court in effect are you sure? And she responded why when I walked into the court room and was seated in the back and I saw him from the rear I knew this was the man who had killed my husband, this was somebody she had seen for a few minutes during the robbery and she claimed of knowing him since she walked in from his back. Mr. Arnold’s identification, this is the 16 year old boy, he was subject to substantial infirmity as well. First of all he testified a trial that he had seen the assailant for only 20 to 25 seconds and in part of that time he was looking down at Mr. Terman who had been shot and laid in the doorway and was trying to give aid to him. Number two, he said his mind went blank during that 20-25 seconds. Number three, he was never, the subject of a lying up be it photo or otherwise. He did while in the hospital identify the petitioner’s photo in the group shown to him but his testimony was at the trial that four or the six photos shown to him which looked nothing like the petitioner and that the one that he did see and identify lo and behold petitioner’s name across it Darden across the chest and the date 09/09/73 of the date of the crime, and Mr. Arnold testified that he had read about the crime before he was asked to make this photo identification. The final piece of evidence that the state had that amounted to anything was a gun and the gun was indisputably of the caliber used in the crime a 38 and it was found some 40 feet from the highway and a roughly the same distance from the place at which the petitioner had his automobile accident, no dispute that he had the accident a few miles from the scene of the crime at around the same time and that gun was found a day later, not very far from the automobile accident and not very far from the highway and indeed there was no dispute that anybody might tossed it out passing the car. So, that was the states case as the case went to the jury. On the defendant side the defendant had taken the stand in his own behalf, he was the only witness in his own behalf. He had told what I believe the record demonstrates to be a coherent and plausible story not in consistent with the prosecution story but to the identifications, not in itself inherently and implausible story and that was the case for the defense. So, in sum the case as it reached the summations stage was a close one and we think the prosecution summation itself impart demonstrates that. I think one can ask rhetorical question quite appropriately, would any sensible prosecutor have carried on when McDaniel did hear if he though he had an easy winner. Is this the kind of thing that any experience and this was not experience prosecutor would do, if he was comfortable with his case and we think the answer to that is an obvious one and did McDaniel’s conduct itself demonstrates that he thought his case was shaky one. As to the merits of the summation the demerits of the summation, the character of the McDaniel’s conduct I do not think the one need past beyond the brief of the respondent and the opinion of the Supreme Court of Florida to know how it should be characterized. The respondent’s brief what is it called the summation by McDaniel here. Utterly irrelevant is one phrase, without rational relationships that question of quilt or innocence is a second, inflammatory and irrelevancy state says, improper appeals to the jury’s emotion. Finally, the ravings of the prosecution that is the state’s characterization, not ours of the summation by McDaniel. I think if you read the state’s brief, it is only real argument in the defense of the summation depart from the procedural points that has raised is that the summation was so bad that no sensible juries would have paid any attention to anything that McDaniel said. Now the majority in the Supreme Court of Florida this was the conviction and death sentence were affirmed by 5-to-2. The majority opinion also recognized we think that the closing argument was not improper one. What have they said? They said although the prosecutions remarks under ordinary circumstances would constitute a violation of the code of professional responsibility. In this particular case they amounted to harmless era when the totality of the record is considered. Again the language used by the prosecution Justice Boyd wrote for the majority would possibly have been reversal error if it had been used regarding a less heinous set of crimes. Illogically however the Supreme Court of Florida said this crime was such a shocking one that all of this inflammatory irrelevant nonsense was proper.
Speaker: They say proper or they said that it would not have any greater impact on than the evidence itself.
Geoffrey M. Kalmus: I do not think they quite said that Mr. Chief Justice.
Speaker: They surely did not say it was proper, you certainly misspoke to yourself there considerably.
Geoffrey M. Kalmus: I think your comment certainly a fair one your honor.
Speaker: Mr. Kalmus the majority of the Supreme Court Florida I think that did disagree with you as to the closeness of the evidence and that second last paragraph at Page 163 of your Appendix. They say that there was a fair pretty much of an overwhelming.
Geoffrey M. Kalmus: I quite agree with you, they do say that I have read the record a few times and have tried to summarize it as we see the case as balancing it on the both sides and we do not read at that way at all and I might say that in terms of our description of the evidence as it went to the jury, the states brief does not disagree with this in any substantial way, the state takes the same facts and says we think those were overwhelming but they are not far linked at all the presentation of the facts and I agree.
Speaker: Mr. Kalmus, Florida Supreme Court said that it did not approve with prosecutors argument but what it found, I read it that it was the harmless era of the overwhelming character of the evidence.
Geoffrey M. Kalmus: They did use the phrase amounted to harmless this ever, era at one point in their opinion. If that is quite true.
Speaker: You think it would have been stronger, if they used it more than once.
Geoffrey M. Kalmus: No, I think it would have been stronger if they have said more accurately this kind of conduct cannot amount to harmless era, that there is some conduct so outrageous, willful for conduct, no questions about that state can see it, that this goes so far beyond the bounds that it cannot be harmless era. We cannot say that the jury was either so smart that as to disregarded entirely or so detached as to ignore the many statements from the prosecutor that grew into issue all kinds of matters having nothing to do with the quilt or innocence of the defendant.
Speaker: Would you not agree that a completely dispassionate objective description of what had taken place; the actions of the petitioner would have in itself amounted to a shocking kind of statement just saying exactly what can happen.
Geoffrey M. Kalmus: I agree Mr. Chief Justice that the crime was a shocking one and the conduct of the assailant…
Speaker: That is not quite my question; the question is if you objectively, uncommonly, and quietly describe precisely what had happened would that not shock the listener?
Geoffrey M. Kalmus: I think that it might have that effect Mr. Chief Justice but it would be in effect based upon the evidence. Our quarrel here is that the prosecution summation for Mr. McDaniel summation had nothing whatever to do with the evidence and the state does not quarrel with that brief, they say yes it is quite right, most of what he said had nothing to do with the evidence.
Speaker: But at some part the defense even talked about the animal that committed the crime.
Geoffrey M. Kalmus: Justice Marshall.
Speaker: So, I think you want to separate the two.
Geoffrey M. Kalmus: At one point, one of the defense counsel in summation and there were two one each sides summing up, said that the assailant would do these kinds of acts would be an animal. Of course he did not attach that label to the petitioner who he said had not committed the act which was in accordance to the petitioner’s testimony. The prosecution picked up on that and…
Speaker: You are very quickly about that are you?
Geoffrey M. Kalmus: No Your Honor, that is one of the many items in the summation which we have derelegated to footnote somewhere in our brief. We complain much more rigorously about the some of the other conduct in summation. I think just to get a little of the flavor of it, I do not think you can get entirely without reading summation in full text. If one can get a sense of it from just a few quotations from one of McDaniel’s themes, it is the one that he began with, it is one that he ended with and it is threaded throughout his argument. As far as I am concerned he said, there should be another defendant in this court room that is the division of corrections, the prisons, that had let him out on a weekend for a while, that was the reason the issue came up. As far as I am concerned he went on, this animal was on the public for one reason because of the division of corrections turned him lose, let him out, lets him on the public. Can not we expect them to stay in prison when they go there, can not we expect them to stay looked up once they go there, do we know that they are going to be out on the public with guns drinking? Mr. Terman is dead because that are unknown defendant we do not have in the court room allowed, he is criminally negligent. Many went on, tie us into it significant to the case and he said the only way I know that he is not going to get out on the public is to put him to death, convict him first degree-murder. It is the only way I know, it is the only way I can be sure of it, it is the only way that anybody can be sure of it now because…
Speaker: Is that by itself an improper argument when you are dealing with a statute that constitutionally authorizes the imposition of a death penalty for a prosecutor to say, the only way you can be sure this man will not repeat this kind of offence is to impose the death penalty.
Geoffrey M. Kalmus: This was in the punishment determining stage of the trial Your Honor, this was in the guilt determining stage and I think…
Speaker: You would say it was not wrong in the punishment determining stage but it is wrong in the guilt.
Geoffrey M. Kalmus: I am not certain that it would be appropriate in the punishment determining stage, but I am confident it is not appropriate when the court has not reached that stage of the case and the passage that I have partially quoted goes on in much of the same theme. Again if one looks at some of these other themes, he talks about the defendant and his McDaniel’s wish that the defendant had been maimed or killed or shot themselves, or blown his head off over and over again he comes back to that theme. Obviously for no purpose then to rouse up the jury to get them to decide this case without regard to the evidence. Again there is the theme of putting the prosecutor’s credibility itself in issue, something that every court for long, long many, many years has condemned and yet it was done here over and over again by the prosecution, both by prosecutor’s wife and by prosecutor McDaniel saying, I know sure as I am standing here that this man is guilty. McDaniel again saying, why if I were in the petitioner shoes I would have lied like till my teeth out also, remarked over and over again of that kind. I think one can fairly conclude only that the prosecution’s misconduct was willful the state does not dispute that, and I think that is one of the key reasons here why there must be a reversal. I would like to turn to some comparison of this situation with that in DeCristoforo in which Mr. Justice Rehnquist said a number of guidelines for dealing with this kind of an issue. Before I do that I would like to ask whether there are any questions that the court would like to put with respect to the procedural points that the state has raised and what we have dealt in our reply brief. Turning to the merits than and the comparison with DeCristoforo, there were I think three criteria that the Court thought crucial in DeCristoforo, crucial there in finding that there was no denial of due process through with the prosecutors statement. There you will remember what court was concerned with was a one sentence rather ambiguous mark that according to the First Circuit at least the majority in the First Circuit had indicated to the jury perhaps that the defendant had sought to plead guilty to some lesser crime in first-degree murder and the prosecution had turned him down. So, it was semi-implication of guilt and it was a single sentence which this court found rather uncertain and ambiguous in its meaning and of little probable impact in the context of the entire case. Three criteria that Mr. Justice Rehnquist spoke about, one was how larger role did the prosecutor's misconduct if one may call that in DeCristoforo occupy and in the context to the whole summation indeed in the context of the trial and the answer there was it was one sentence out of what the court characterizes a lengthy summation. Here one has the 35 type written pages of summation by prosecutor McDaniel and I had try to measure it and I think you come down around 10-12 pages if you cut out the you irrelevancies, the ravings, the carryings on about all crimes and murders that had nothing to do with the case. Secondly, Mr. Justice Rehnquist focused in DeCristoforo, on whether the prosecution’s conduct was willful or was it a mistaken in the heat of the argument. There it was fair to infer from the fact that a single sentence was involved and the judges in the Massachusetts Supreme Court, Federal District Court, the Courts of Appeals and here all disagreed about what that one sentence probably conveyed to the jury, it was fair that conclude that misstatement was accidental or just poor phrasing by the prosecutor in the context of something that came out without prior planning. Our case no doubt about it, the state does not contest it. This was a calculated willful effort to rouse up to jury to distract them from the evidence to tell them that what I am telling you Mr. McDaniel was saying is relevant to your consideration.
Speaker: You do not mean that in its full sweep what you just said that, supposing the prosecutor in the midst of a 30 minutes summary goes off on a 10 minute total irrelevancy about how the weather is been in the last few days, but it’s not at all prejudicial to the defendant, do not you have to combine the two to make your argument.
Geoffrey M. Kalmus: I agree Mr. Justice Rehnquist that if it had been of such palpable irrelevancy as what a nice weather we have been having, then one would say without any hesitation that maybe prosecutor is little crazy, but it had nothing to do with the case and the juries could not have been move by it or rational juries would not have been move by it. Our case does not fit that mould at all. The comments, the many, many comments that McDaniel were not off to one side, they were cut through from the beginning to the end, number one. Number two, that they were not of such of palpable irrelevance that sensible juries unsophisticated but people of average intelligence would say, gee obviously that has got nothing to do with this case, I am going to disregard it, they would not say that to themselves about the kinds of things McDaniel was going on about. They would say, as this court said way back in Berger v. United States, Justice Sutherland’s opinion that the prosecutor comes here with not merely official backing, but presumably to do justice and therefore I think juries would say themselves, we can take it, the things that he says have some relevance to our consideration of this man guilt or innocence. I think that if you read these remarks in context, one must suppose, one can avoid supposing that any average group of juries would have so understood the remarks and would have taken them into account in deciding whatever they decide.
Speaker: If you have just read, the prosecutor had just got the transcripts of the testimony, prosecution’s testimony of the survivors and in effect read that to the jury, would you be complaining about his the outrageous character of his argument?
Geoffrey M. Kalmus: I do not think that I can complain if the prosecution had confined itself to the evidence that evidence in this case was terrible and the evidence was a legitimate consideration for the jury in deciding whether to convict or to quit. I think when the prosecutor willfully departed into matters that were obviously not evidence, were not related to the evidence. That then indeed there is a right to complain and there is a right to have a trial free of that emotional kind of (Inaudible). I think just enclosing that, Justice Stevens made the point just last week in gardener and the statement was quoted this morning to the effect that community as well as the defendant are entitled to have a trial conducted in a intelligent equitable non-emotional fashion and to have a jury decide the case without the interjection of improper emotional factors. Thank you.
Speaker: Very well Mr. Kalmus, Mr. Prospect.
Richard W. Prospect: Mr. Chief Justice it may please the court. My name is Richard Prospect and I am appearing here on behalf of the respondent State of Florida. I have just sat here for the last 15 minutes and listened to the number of times with which Mr. Kalmus has attributed the state, the respondent is caused with admitting, conceiving and otherwise not contesting the fact that the statements that appear in this record that were arguing the closing argument of the state’s case are irrelevant, outrageous, ridiculous and otherwise having no place in any trial in our state or any other. I replied to him by saying what else could I do, the statements are there, I am not about to tell the court that they are not, I am not about to tell the court that it means something other than the plain meaning of their words are. My question is or my position is, of those portions other remarks that absolutely are irrelevant to any business at hand there is nothing that ca not be said except were they prejudicial to this defendant. The other portions that were more or less listed in the petitioners dissection of the argument are at least in part in response to certain things that the jury heard first by defense counsel. Now the mention about, the only way I know this man is not going to get back out on the public is to sentence him to death. Now, that came in response to something defense counsel started off in the first argument the jury heard. If you will read that you will find that, Mr. Maloney the first defense counsel stated that ladies and gentlemen on the evidence the state has presented today, they are asking you to kill my client. Now, McDaniel quickly corrected that misimpression, he very clearly and substantially told the jury that ladies and gentlemen we are not here to do that right now, we are here to determine guilt or innocence and nothing else. We have a second stage of the proceeding in which I will ask for the death penalty and I'm going to ask for it because it is the only way I know to keep this man off the street. Now that is something that we can justify because it is not response to what occur. The other matter – let us not nitpick over any of them, let’s not reread them or anything else, I know they are there, you know they are there. Let us decide whether they deprive this man of a fair trial. Now, anybody and probably everybody who is familiar with his record will quickly agree that these arguments had no place there. Everybody except defense counsel, it is not until the last page, as it appears in the appendix, does that objection occur. Why is this, they were either asleep, they did not think anything was wrong with the remarks or and I believe this comes into the rationale of the Estelle and Francis case. They thought perhaps we just got reversible error. Does it take a legal wizard to see there or to sit there and to listen to man take off and in a rent and know that something is not right.
Speaker: Can you conceive of a lawyer not objecting.
Richard W. Prospect: No I cannot.
Speaker: Defense can also.
Richard W. Prospect: No I cannot.
Speaker: Or can you…
Richard W. Prospect: Well I can, I can if as I was about to say, if they think they have got reversible era. Because that’s on the back side upfront they have got the shot at the verdict.
Speaker: You did not make an objection that an average lawyer would? Why is it that, petitioner doesn’t the raise the question with effect of assistance to counsel that’s what I don’t, and he doesn’t...
Richard W. Prospect: Perhaps Mr. Kalmus can answer that when he gets back, I don’t know.
Speaker: But he doesn’t raised.
Richard W. Prospect: Well is it ineffective. If he doesn’t object thinking that he got to shot the verdict. I mean if he is right today when he says that the evidence was close I do not happen to agree, but if is right and you got a close case you got to shot at that verdict because you could always walk out that day but if you are wrong you have got guilt in there.
Speaker: I just do not…
Richard W. Prospect: Exactly that is why I think the rationale of Francis and Estelle applies. If something is occurring that you don’t like get on your feet and say so.
Speaker: Mr. Prospect your opponent also made the point in objection during the end of the argument but there wasn’t objection on the second page of the argument Page 122. Of course it is to an argument not being supported by the evidence in the record but that is the substance of much of the criticism there.
Richard W. Prospect: Well no it is really a very pointed and specific objection.
Speaker: He says now I object there is been no testimony of this.
Richard W. Prospect: Exactly, I am sorry I believe Mr. Darden.
Speaker: That is on the second page of the argument. So he did start to object right away.
Richard W. Prospect: But not on the basis of being anything being inflammatory or prejudicial. Apparently McDaniel misstated something, something of no consequence and Mr. Goodwill says there is been no testimony and McDaniel replies I'm sorry I believe Mr. Darden testified to it. I do not believe so says Goodwill and the court reinstructs the jury. Ladies and gentlemen it is recollection of the evidence is what is important. Now if something that trivial…
Speaker: This kind of indicated his attitude toward the objection, no he was very sympathetic to right at the outset.
Richard W. Prospect: I beg your pardon sir.
Speaker: The Court’s disposition of the objection was well Juries heard the objection, it can decide for itself.
Richard W. Prospect: Well I do not think it indicates any prejudice towards the defendant, it is the fact.
Speaker: That’s the way the judge handle the second objection.
Richard W. Prospect: No, that second objection as I pointed out in brief is really nothing more that I request to the man stick to what evidence he had. Now, apparently got to remember you want to go to the beginning of things. Go to the very beginning and we see that Mr. Maloney says, ladies and gentlemen we have been here five days, we got a long trial and after or in response for the statement, the only thing he has not done that I know of his cut his throat. Alright Maloney gets on his feet and says, Your Honor it is about the fifth time that he has come and that he wish someone would shoot this man or that he would kill himself. I wish the court would instruct Mr. McDaniel and stick with what little evidence he has and then is perhaps and less than professional response McDaniel comes back with, you don’t have any evidence yourself Mr. Maloney. Now, we can’t get the feel of this on the printed page but apparently the court was fed up with that and replied alright gentleman proceed with your argument.
Speaker: The judge apparently wasn’t defended by the argument either, he overruled that objection too. He said go ahead with your argument.
Richard W. Prospect: Well he overruled a request for an instruction that McDaniel stick with what little evidence he has, that is the only form of a quote on objection I quote. He did not say I object Your Honor on the basis that, it is prejudicial inflammatory or unconstitutional and I want to mistrial or I want at least a curative instruction. Have he done that, he would have given the trial court the opportunity to rectify any error that was happening.
Speaker: Your view is the trial judge would not recognize there was anything improper about this argument without the counsel explaining it to him.
Richard W. Prospect: No I'm not going to say he could not recognize it, I am sure he did.
Speaker: Than the objection did not prompt any curative instruction at all. Well, wouldn’t you have thought the trial judge would have had some --
Richard W. Prospect: He did not asked for it.
Speaker: But you are saying that, that the judge had to have that explain to him and the judge didn’t realize it was necessary?
Richard W. Prospect: No I think there are two different things, what the judge realized and what he was asked to do.
Speaker: Do we have any and there is also discussion after record about in Page 127, Mrs. Goodwill said in one of the examinations I believe, Mrs. Hill (ph) probably was another interruption there. It seems to me that Perhaps three interruptions of closing the argument, counsel during the argument.
Richard W. Prospect: I cannot and do not read it that way, so I don’t know what that indicates. That only indicates to me, that McDaniel stopped his argument, there was a discussion of the record between whom we do not know and he continued.
Speaker: Is it (Inaudible) in Florida when one objects the closing argument all is to do so already in the presence of the jury or is it sometimes done that you try to have a sidebar and not make such a fuss, it is rather rude to interrupt counsels you know and you try to avoid that sort of things at times.
Richard W. Prospect: I would say that based on my experience, objections are made in front of the jury and generally I really do not recall the necessity for having them taken out of the court room in order to discuss something. I believe the objection and whatever the grounds that it is based on is here before the jury.
Speaker: you would not think it is fair to infer and I just -- the discussion of the record on page 127 might have related to the content of the closing argument.
Richard W. Prospect: No sir, it may just as well have related to a conference between McDaniel and his co-counselors as to what he was going to say next. I mean just as you show that one way or the other. Now we have taken into position of course that it is one thing for a prosecuting attorney to prejudice a defended by as closing arguments. There is another thing to inflame them and it is quite another thing but the same to go out side the evidence when he does the other two, that is why we propose that three full test and we have submitted it to the court for the courts consideration in determining proper guidelines to let all concerned know what it is that is proper and what is not proper closing argument at least on behalf of a prosecutor. We do not seem to have that restriction on defense. Now, as we stated, without an objection there was no chance to straighten out the jury. Now, in a nutshell and in a paragraph in the brief we stated that, that petitioner has claimed that by engaging all this irrelevant matter and this ridiculous argument the jury and we referred them to as in his brief and in reply as rural, coming from rural Florida, is implied that they were so malleable and receptive to this type of argument that they automatically more or less and necessarily went back in their jury room and based their verdict on what McDaniel said. They disregard of the evidence and they were so moved by the man’s tirades that they came in with guilty based on that. However he fails to mention either today or in reply, the fact that Goodwill got up after all of this nonsense. He says ladies and gentlemen, “We are not here to listen to this man pound the table, to yell to run around and throw papers. Do not let him embarrass you into a verdict. You can convict him on what that man says and by the same token you can not equate them on what I say. We are only to help you.” That’s what the judge told them in the very beginning. He neutralizes any effect and I dispute, that these people were so receptive to being improperly influenced. Now, I personally take dispute with the rural Floridian aspect of this case, that has appeared twice but it wasn’t mention today, but the none the less it was not to reply brief. The case was trial in Citrus county Florida. It is not like Jacksonville or Miami. Apparently petitioners of the opinion that anybody who comes from that area and who would sit on the jury in a murder case, would be the rural type. Now to me rural means farms and our country and it is very interesting because we Floridians who are from that state no one thing and that is there are very few natives. Most of us are transplanted. If we look at the jury selection on the whole.
Speaker: Now, what is this rural area in Florida?
Richard W. Prospect: Citrus County Florida.
Speaker: And the town?
Richard W. Prospect: Crystal River is the closet to any sides, very pretty but not large. So, if we look at the jury selection as a whole and we examine the jurist who sat, we see that that Mrs. Massie is a native of Ohio. Her husband is retired army. Mr. Dormany has been in Crystal River since 1971 and had jury service in Georgia. Mr. Karhof is from New Jersey. He has been in Florida for two years. Mr. Schneider is from Illinois. He lived in Florida for six years. Mrs. Lucker had been in Florida since 1968. She was the wife of retired aviation inspector. Mr. Parker has been in the area for three years. He is a Nuclear Operator, Florida Power Corporation. Mr. Emback has been in Citrus County since 1970, Shift Supervisor for the Nuclear Plant at Ford Power. Mr. Hudson maybe a native, he doesn’t say. All that his questioning reveals that, he works as an construction labor. Mr. Mulroy is someone perhaps more to petitioner’s liking. She happens come from Queens, New York City.
Speaker: (Inaudible)
Richard W. Prospect: Exactly sir. Her husband was a 30 year F.B.I. Regional Director before he retired and he lived in as many as 14 different places from Nebraska, this city here today, Virginia and West Chester. I believe that either in state of New York or Connecticut, I am not sure. Mr. Pettilat (ph) is a retired Firemen from Sarasota, Florida. He has lived in Citrus County since 1971. We have Mrs. Hann, H-A-N-N who lives in Crystal River but she was a retired Supervisor from the security of First National Bank Los Angeles, California. Finally Mr. Wall nine years with them living in Citrus County with the County Road Department Maintenance Crew. So, we have got two people who maybe natives, who may possibly represent rural people from rural Florida whatever that means. We look at the other people who were not selected for the jury and we have everyone coming -- we have people coming everywhere from California to New Hampshire. We have a Marine biologist from Texas, Indiana, Orlando. A school teacher from Orlando from Indiana and two other people who have been in the area from five to two years. So we simply just don’t have whatever is supposed to mean by a rural jury. I think that jury and its composition and its possible effect, the effect of the argument on this jury has to be considered very closely tied with the necessity and the rationale behind an objection. If these people are going to be swayed then we have got to stop it as soon as it begins. But if they are not then, they can be rehabilitated by what counsel said in his response in his rebutting closing argument or he repeated, listen ladies and gentlemen only to the evidence forget this wild man over here, we are not here to do anything by decide guilt or innocence and we of course concluded our discussion of the jury with based on this profile. Now this is just only reflects the questions and answers which would indicate where the people and from and what they do. Now this doesn’t reflect their responses to other questions. Standard jury questions which are asked in all cases relative to predisposition to guilt innocence, notoriety of the case and so forth. You will see some very intelligent answers especially those relating to Weatherspoon, you will see some very intelligent people. We submit that these people were sophisticated enough to know that when McDaniel took off that is all he was doing, taking off and it was perhaps – they viewed him with legal egg on his face, if that’s possible phrase to use. We just don’t think that they were persuaded to rush to judgment, put that verdict as guilty and comeback out and say, we were based on our or being inflamed, we reacted from our heart and not our head. I just do not believe that, and I have got an idea that they did not believe it either or else they would have objected and they would have at least gotten up there and said, Your Honor would you please tell this man or I object on the grounds of this, let us stop it, but perhaps they did try to take a shot of the verdict knowing that they have reversible error because you got to remember is not it always good if you are on the defense side to get a new trial especially in a capital case. Now if they were convinced of reversible error they know they have got to go Florida Supreme Court, that court hears was capital cases. It takes time; we conceivably could have had a reversal occur, have to try this man within five years or more from the offense. The second trial is always fine, where you got the possibility of missing witnesses. You have always got the possibility of even with available witnesses dimming memories and every witness you have got against you, you can automatically ask, you mean to tell me you can remember something that clearly that happens four or five or six years ago. It is a good shot to try and get that reversal in the second trial and it is even better shot to try for the acquital because then you can go home that day and I think that the issue involved here considering the lack of objection, considering the very thing, they are yelling about the most, the content of the argument. Consider all of that and in light of the entire record and I think you really have to conclude that all though McDaniel – even I represent the state, I feel like I am representing one man and his conduct. Even though he heard himself, and but not the case, I think you have got to say that, viewed in his totality Willie Jasper Darden may not received a perfect trial, not the antiseptic one and Darden merely as, as you suggested Mr. Chief Justice dispassionately read something or summarize the evidence but he got a fair one and that is what we are here about.
Speaker: If in Florida one makes an objection to the trial judge on the particular ground and the trial overrules the objection, is it generally presumed that if another similar instance arises, the lawyer is not required to make the objection again that the trial judges ruling would be the same on a subsequent case.
Richard W. Prospect: Yes sir. As a matter of fact I believe we have case law to the effect that once you know it would be useless in light of previous ruling, you don’t have to do it, it still preserved properly. But using that I will still ask for one objection in this record which is not there. Thank you very much.
Warren E. Burger: Do you have anything further Mr. Kalmus.
Geoffrey M. Kalmus: if I may, just a moment. I think that what the state is asking here is the prosecutor be given license to proceed willingly and whatever fashion he may, and on whatever ground he may wish to, and to put the defendants counsel in the box of standing up and objecting every time something you said, or if letting it go by. We all know that, that is a difficult lawyer’s decision to make in context. Like here the state is saying, even though the prosecutor willfully makes outrageous arguments that he has no business making and he knows he has no business making. Still the defense coun is going to be kept in that box and that seems to us that’s not a tactical choice that can fairly be imposed against willful misconduct by prosecution. As to your question Mr. Justice Marshall as to why there was no in effect to the systems of counsel issue here. The issue was not raised in the courts below and we did not feel that could be raised here for the first time, perhaps it is raised upon habeas I do not know. Although I know that from past experience it is a very difficult one to win. Thank you.
Warren E. Burger: Thank you gentlemen the case is submitted.


William H. Rehnquist: We will hear argument first this morning in Number 85-1208, Fall River Dyeing & Finishing Corporation versus National Labor Relations Board. Mr. Drogin, you may proceed whenever you are ready.
Ira Drogin: Mr. Chief Justice, and say it please the Court: This case involves the issue of whether and under what circumstances an employer, purchasing the assets of a defunct business enterprise, must recognize a labor union which represented the employees of its predecessor, the former assets owner. It is to be distinguished immediately from those cases in which a going business was purchased, substantially intact and operational, and in which the new owner retained or quickly employed a majority of the employees of the former assets owner. This Court must decide--
Byron R. White: --heard enough of the employees of the former owner, that a majority of his present employees are those?
Ira Drogin: --That is correct, Your Honor. Eventually that occurred. That occurred at two different time periods and I am going to get to that if I may. This Court must decide whether Fall River should be considered a successor for the purposes of collective bargaining when the employees of its predecessor constituted a minority of all of the employees of Fall River at the full complement date, but also when the employees of the predecessor constituted a majority at an earlier date, the substantial complement date. We have some guidance from this Court in how to approach this particular issue, and if I may quote very briefly from the opinion of this Court in howard Johnson: this Court held that the real question in each of these successorship cases is on the particular facts, what are the legal obligations of the new employer to the employees of the former owner or their representative. The answer to this, according to this Court, requires an analysis of the interests of the new employer and the employees, and of the policies of the labor laws in light of the facts of each case and the particular legal obligation which is at issue, whether it be the duty to recognize and bargain with the union, the duty to remedy unfair labor practices, et cetera.
Sandra Day O'Connor: Mr. Drogin, I take it that in general we have concluded that NLRB findings of fact are going to be treated as conclusive unless they are not supported by substantial evidence. Do you agree with that as a general principle?
Ira Drogin: I certainly do, Your Honor.
Sandra Day O'Connor: All right. Now, what are the legal issues if any that you think are in this case? Are you asking us to change some legal standard that the Board employs, the substantial and representative complement test or anything of that kind?
Ira Drogin: I am, indeed, Your Honor. I think that the substantial and--
Sandra Day O'Connor: It isn't clear to me from your petition and the statement of questions whether we are being asked to review the case to find out if there is substantial evidence, or if you are asking us to employ a new legal test or standard in these cases.
Ira Drogin: --I think the answer is both. I think that there is no rational basis for the decision of the Board here, and I am also--
Sandra Day O'Connor: You mean, there is no substantial evidence?
Ira Drogin: --That is right. I think that there is--
Sandra Day O'Connor: So, you are asking us to make a factual determination?
Ira Drogin: --Yes, I am, Your Honor. I am asking that. I think that the legal issues deal with the interplay of three specific propositions. They are the fact that the Board here has applied the substantial and representative complement test, completely ignoring what this Court said in Burns, that there may be situations at which the time for determining the majority status of the employees involved in the successor may not be available, or may not be appropriate until a full complement of employees has been hired. In this situation, we had--
Sandra Day O'Connor: Well you think we should adopt a rule that you only... you time the inquiry when there is a full complement of employees rather than a substantial and representative complement?
Ira Drogin: --Yes, in a slow build-up situation. Most of the cases that this Court has had before it, Wiley, Burns, Howard Johnson, involve situations where the unit was taken over virtually intact with virtually all of the employees, and there was no hiatus involved. This case differs substantially, factually--
John Paul Stevens: May I ask, just so I understand your position, assume you have a takeover of the assets and no employees, and you add 20 employees a month until you get up to the full complement. And when you've got, say 75 percent of the employees, say it's perfectly clear that they're all union members and they're all former employees, would you say there is no duty to bargain until you have the full complement?
Ira Drogin: --I would think that you have to determine at the outset what the employer's plans are and when the full complement--
John Paul Stevens: Well, I would assume the plans are to keep hiring until you get the full complement, but you won't have that done for another three or four months. Are you saying there is no duty to bargain until that three or four month period?
Ira Drogin: --In a situation where there is a slow buildup, and particularly, Your honor, in a situation such as here where there is no rational or factual basis for the underlying presumption that the--
John Paul Stevens: Well, but that's a separate question. I was just trying to isolate the question about the point at which you measure the right to have... the union's right to have the employer bargain with it. And you say, you just done, even begin to have a duty to bargain until there is a full complement, even if they are all former union employees and former employees of the prior owner?
Ira Drogin: --Unless, Your Honor, the takeover is a takeover of a going business--
John Paul Stevens: Right. I understand.
Ira Drogin: --virtually intact, virtually the entire labor force, but not in a slow buildup situation where there is an assets purchase.
Byron R. White: Yes, but if he's 75 percent... he has 75 percent of his complement and all of them are prior employees, when he gets to be a full complement there is still going to be a majority of the former employees.
Ira Drogin: Well, that's an assumption. That assumes that if that 75 percent--
Byron R. White: You mean, he's not going to fire anybody? He's not going to fire anybody?
Ira Drogin: --Certainly not. But you have to accept an assumption--
Byron R. White: But in this case, in this case it was possible but not in the example I just gave. In this case it was possible that when it reached the full complement there would not be a majority.
Ira Drogin: --That is correct. It is possible. The problem in this case is that there is an underlying assumption here that at the time of the demand, at the time that the demand was made at this case, and the time that the measuring period was applied, in this case by the Board, the substantial complement date which was seven months at least from the time of the closing of this plant and the laying off of 150 employees, that representation wishes of the former employees of Sterlingwale had not changed and that is completely unsupported by the record. This Court has always been concerned with the paramount principle of the National Labor Relations Act, and that is the policy of majority representation. It has been concerned that employees are not bound by a representative, a majority of them, by a representative not of their own choosing. And in this situation, quite different than Burns, there was no recent certification. In the Burns case there was a certification of the bargaining representative only three months before the takeover. Here, not only was there no certification but over a bargaining history of more than 20 years, there is no evidence in the record that there was recognition based on any showing of majority support. The assumption, or presumption that we start with a majority in this time carryover rests entirely on a collective bargaining agreement which has a union security provision which requires all employees to be members of the union 30 days after their employment.
Harry A. Blackmun: Mr. Drogin, I take it from your remarks that you do not expect... you are not asking us to overrule Burns?
Ira Drogin: Certainly not. I think, however, that one of the concerns of Burns was the implicit assumption with regard to representation. That there is a carryover that every employee in the predecessor employer's employ who was a member of the union still wants to be represented by that union seven months, ten months, 11 months, however many months afterwards in this type at situation that person is employed?
Antonin Scalia: What's the cutoff mate for... you would abandon this argument if there had been a union certification election within a year, within a year before what--
Ira Drogin: Within a year before--
Antonin Scalia: --A year before the transfer of ownership, or--
Ira Drogin: --Not the transfer.
Antonin Scalia: --within a year before the full complement?
Ira Drogin: Before the full complement, Your Honor. I would think that the full complement date in a slow buildup situation is the appropriate date. I think that's what this Court had in mind in Burns when it said that there may be situations and circumstances in which it's not evident until a full complement has been employed, that the union does have majority--
Thurgood Marshall: Is there any way that a union can protect itself under your theory without holding an election every year?
Ira Drogin: --Well, certainly, Your Honor. The union is protected by certain presumptions that, for example, one year... there are no representation petitions to be filed one year after its certification. Its contract protects it for a period of time afterwards, and there is a continuing presumption--
Thurgood Marshall: They had a contract here?
Ira Drogin: --Yes, and that is quite interesting, Your Honor.
Thurgood Marshall: I thought you said they had to have had, within a year, a certification.
Ira Drogin: That is what this Court said in Burns.
Thurgood Marshall: Is that what you say?
Ira Drogin: I think that that's the proper rule.
Thurgood Marshall: That in this case they should have had an election every year?
Ira Drogin: No, not every year, Your Honor.
Thurgood Marshall: How could they have protected themselves?
Ira Drogin: Well, it's not a question of the union protecting itself. That's not the interest that we are seeking to protect. The interest that the statute has us protect is the right of employees to be represented by a union of their choice.
Thurgood Marshall: Well, how can employees do it, other than to every year challenge the union?
Ira Drogin: Well, here, Your Honor, we have a very unusual situation.
Thurgood Marshall: You sure do.
Ira Drogin: Because the union, for all intents and purposes, was gone from the picture. After its contract expired in April of 1982--
Thurgood Marshall: You're going behind the contract, then.
Ira Drogin: --Pardon me, Your Honor?
Thurgood Marshall: You're going behind the contract, then.
Ira Drogin: I'm not going behind--
Thurgood Marshall: Are you telling me that the contract doesn't exist?
Ira Drogin: --That is a factual statement. That is correct. The contract expired on April 1st, 1982 and there was no attempt to renew it by the union because the employer, Sterlingwale, was being liquidated. It was defunct. It was selling off its assets. It was a dead, moribund company and that is the distinguishing point between this case and Burns and Wiley and Howard Johnson and Golden State. In those situations there was at least an expectation, an immediate expectation on the part of the employees of the former employer that there would be some kind of carryover of bargaining representative.
Antonin Scalia: Mr. Drogin, I have been thinking about your answer to my previous question. I don't see how it can work. You want the year to be measured from the full complement date, but you don't know when the employer is going to reach a full complement until he finally reaches it. So, what do you do in the interim? You are in absolute indecision. You don't know whether you have to deal with the union or not. It can't be... it surely can't be the full complement date. You must mean the anticipated full complement date.
Ira Drogin: That is correct, Your honor, correct, and in this particular case that was not hard to determine because the employer had immediate plans. His plans worked. He stuck with those plans. The job required that two shifts be put on as the business increased. The employer projected an April full complement date. That is exactly the way that it worked, with a slow and gradual buildup. Now, it is argued that the union doesn't know, or how can the union know. The answer to that is, all they have to do is ask and there is nothing that prevents the employer from giving this information to the union. If they refuse, if the employer refuses, which would not be the case in this situation, then certainly the union can file a representation petition with the National Labor Relations Board and in the Board's Investigation and procedures, that information is going to be forthcoming. So, there is no prejudice to the union.
Lewis F. Powell, Jr.: Mr. Drogin, to change the subject little bit, what percentage of the business of the new company is with customers of the old company?
Ira Drogin: Including the parent company of Fall River, slightly more than 50 percent. Excluding the parent company, it is about 30 percent. However, there is no real way of determining how much of that was finishing customers and how much of that was converting customers.
Lewis F. Powell, Jr.: Did the new company carry forward both aspects of the old company's business?
Ira Drogin: Absolutely not, Your Honor. The new company is strictly a finishing company, does no converting work at all. The old company was doing approximately 70 percent converting work, approximately 30 percent finishing work. The new company made no attempt to acquire any of the customers, the finishing customers, that 30 percent of the old employer, didn't ask for any customers list, didn't take over any trade name, did nothing other than purchase the physical plant and machinery. It made no attempt whatsoever to continue the business of Sterlingwale.
Lewis F. Powell, Jr.: May I ask you a question about the bankruptcy sale. Was the new company the only bidder?
Ira Drogin: I don't know the answer to that, Your Honor, I have to tell you.
Lewis F. Powell, Jr.: If would have to be the high bidder under your law, would it not?
Ira Drogin: Under the Massachusetts law, I would assume that it was. However, your question poses a very interesting secondary question. In addition to the sale of the secured interests, which was the real estate, the plant and the equipment, there was also a sale of the remaining unencumbered assets of Sterlingwale and in that situation there were outside bidders, and as a matter of fact Fall River acquired only about one-third of those assets.
Antonin Scalia: If I recall correctly, Fall River was formed for the very purpose of buying these assets, wasn't it?
Ira Drogin: I disagree with that, Your Honor. That is what the Board argues, that it was formed for that--
Antonin Scalia: The Board found.
Ira Drogin: --Pardon me?
Antonin Scalia: The Board found. Did the Board argue that, or did the Board find that?
Ira Drogin: The Board argued it, that it was formed. They argued it in their briefs. I don't believe--
Antonin Scalia: That was not part of the findings of the Board below?
Ira Drogin: --That's not my recollection, that it was formed for that purpose.
Antonin Scalia: If it was part of the findings, of course we'd have to defer to it unless there was no substantial evidence.
Ira Drogin: That's correct. What happened is uncontroverted, and that is that the principal, Mr. Friedman of Fall River, had nothing to do with Sterlingwale other than being a customer himself until the end of August 1982 when he was approached by the attorneys and other persons who held the security interest in the assets.
Antonin Scalia: I thought there was an officer of the defunct company, who also went in it with him, isn't that--
Ira Drogin: That is correct.
Antonin Scalia: --The vice president?
Ira Drogin: He did, but at the time in late August 1982--
Antonin Scalia: And the two of them formed this new company, is the way the Board describes it.
Ira Drogin: --Well, I think that's a bit of an overstatement, when you say that they formed the company. Mr. Friedman actually formed the company. He is the sole shareholder. Mr. Chase at that time had been working in New York for a competitor, a competitor of Sterlingwale. Sterlingwale was defunct. The record shows that the company was formed, I believe on August 31st. That is when the Certificate of Incorporation was filed. All of these things happened simultaneously, and the documents in the record indicate... It's a rather complex situation there... that Fall River had the right to acquire these assets at a particular price. And what we have here, really, is an assets purchaser, not interested in the employees as employees. Fall River made no attempt to go after the employees of Sterlingwale. It didn't obtain their personnel records. It didn't obtain any lists of where to locate them. When it needed employees it advertised in the newspaper and that's where it got its employees. It also hired employees of other finishing companies In the Fall River area. And this distinguishes this case very, very much from cases such as Howard Johnson and Burns. Here, after employees, 150 production employees being out of work With no real anticipation of ever being rehired, they see a newspaper ad from a completely new employer and that's how they became part of the personnel of Fall River. I think I would like to make a point here about the representation wishes of the former Sterlingwale employees, because again this lies at the heart of the Act. What happened in this situation was that when Sterlingwale went out of business it owed premiums for life insurance and health insurance for the bargaining unit employees. It hadn't paid them, and any of those employees who wanted to continue that coverage had to pay it for themselves. It also didn't pay severance pay. It also didn't pay vacation pay. In the interim, in the several months while Fall River was... excuse me, while Sterlingwale was in control, money came in. The Sterlingwale Company was undergoing a slow liquidation and the money was used to pay taxes and other creditors, and even when the assets were sold at the end, the unencumbered assets at the end of August of 1982, none of that money went towards paying the employee benefits. So, in the following year when the National Labor Relations Board hearings were coming up the employees, the former employees of Sterlingwale heard about this and they repudiated the union. Factually, without any presumptions being used, they repudiated the union one they had the former secretary... I shouldn't say the former... the secretary of the union circulate two petitions, one to former Sterlingwale employees and one to new employees who were non-Sterlingwale employees. Those petitions are part of the record, and they say clearly that those employees do not want to be represented by Sterlingwale... pardon me, by the union. And the reason is very clear from the record. The reason is that the union did not get the employees the benefits that be longed to them under the contract. That is a very good reason for repudiating a union, and that right is guaranteed. That's the policy of the statute, that employees have the right--
John Paul Stevens: How did the Labor Board deal with this argument?
Ira Drogin: --Well, the Labor Board-apparently unfair labor practice charges were filed with regard to these defaults in payment, and those charges were dismissed because it was not a repudiation, I think is the test that the National Labor Relations Board uses. Unless there is a repudiation of the contract, the Labor Board won't issue a complaint with regard to failure to pay insurance benefits or contributions to employee benefit funds. That's their present policy. So, they were dismissed but they were never pursued to arbitration and there was money there. There would have been money available had the union acted promptly and the employees--
John Paul Stevens: I'm just a little puzzled as to what the proposition this argument is directed to... what proposition of the law does this support?
Ira Drogin: --The proposition that I am addressing this to, Your Honor, is that the fundamental policy of the Act is the protection of employees' rights to be represented by a union of their choice. In this situation we have a noncertified union. We have no showing--
John Paul Stevens: But they had been recognized for 20 or 30 years, hadn't they, as the bargaining agent of these employees?
Ira Drogin: --That is correct.
John Paul Stevens: Does that give them a different a lesser right to bargain on behalf of the employees than if they had been certified Just more recently?
Ira Drogin: Well, that's the whole question, whether Fall River is required under these circumstances to bargain with this union under the successorship theory. Their bargaining demands, the union's bargaining demands, is concededly an unlawful demand, because it was based on the old contract. This Court clearly said in Burns that even if there is a successorship finding, that the successor employer is not bound by the old contract. Nevertheless, that's what happened here.
Antonin Scalia: Mr. Drogin, didn't the Board consider the expression of displeasure with the union that you are referring to, and didn't the Board think that that could be explained on a quite different basis; to wit, that these people weren't approached until quite late on and they thought that if the old union were certified and went ahead with its unfair labor practice complaint, they wouldn't be able to get a wage increase for the next few months? Didn't the Board consider that and didn't it make that factual finding?
Ira Drogin: I don't know if they made that as a factual finding.
Antonin Scalia: Well, this is a credibility point, isn't it? How can we second-guess the Board on credibility?
Ira Drogin: Well, Your Honor, I don't think it's second-guessing them on a credibility finding. I think it's evidence, and there was record evidence from the Secretary of the Union at the hearing with regard to the changed sentiments of the members of that bargaining unit.
Antonin Scalia: But they chose not to believe them, and they thought that the explanation for all the signatures disapproving the union that they got was was simply that the people thought if they approved the union they wouldn't get a wage increase because an unfair labor practice complaint would be in the works.
Ira Drogin: I think the reason that was applied, Your Honor, and this was approved by the Court of Appeals, was that the timing of the petition would not allow... or the petitions, rejection petitions, would not allow... was improper because the Board and the Court said that the petitions had to have come to the attention of the employer before the substantial complement date and because they arrived after that, yet before the full complement date, that they were irrelevant and had no bearing on the issue. I think that was the basis for rejection of that evidence.
Antonin Scalia: You made the point in your main brief that it's very important to have some certitude for the employer as to when the test of majority favoring the union or not is to be applied. The Board responded, you don't need certainty because there is really no harm done. If the employer makes a mistake he won't get hit with a penalty anyway. What harm is done?
Ira Drogin: Well, I think that, Your Honor, the harm that's done is that the employer is found to have violated the National Labor Relations Act, which we consider a violation to be a very serious thing.
Antonin Scalia: If there is no penalty imposed, are there any other legal effects of that finding?
Ira Drogin: Well, there is no monetary fine, of course, that can be considered by the Board in further unfair labor practice proceedings with regard to the remedy that may be applied. Should Fall River be found to be a violator of the Act, again the prior record is important. Your Honor, we don't want a suspended sentence, so to speak. It is our contention that we didn't violate the law and we shouldn't be placed in a position where because of the uncertainty of the substantial complement test we don't know what to do on a day to day basis. The Board itself says that there are no hard and fast rules for determining when a substantial complement has been employed. The Board admits this in its brief. How is an employer to organize its business affairs under these circumstances? This imposes a very unfair burden on an employer, particularly one who is an assets purchaser simply trying to operate a new business. I would like to reserve some time for rebuttal, if there are no further questions at this time.
William H. Rehnquist: Thank you, Mr. Drogin. We will hear now from you, Mr. Cohen.
Louis R. Cohen: Thank you, Mr. Chief Justice, and may it please the Court: The union selected by the members of an appropriate bargaining unit is ordinarily presumed to continue to represent the unit unless and until there is either an employee petition to the Board for a change or the employer can demonstrate by objective considerations that it has some reasonable grounds for believing that the union has last its majority status. The reason for this indefinitely continuing presumption, as the Court re-emphasized last term in the Financial Institution Employees case, is that after the initial selection the law greatly prefers stable and continuous collective bargaining to management electioneering, and that it therefore generally bars re-visiting the representation issue unless and until there is affirmative reason to believe that the union no longer commands majority support. The question, whether changes in ownership of the employing enterprise affect the presumption of continuing representation was answered in general terms a long time ago. Under a well-established Board rule approved by this Court in Burns, a change of ownership does not affect the presumption if there is substantial continuity in the employing enterprise and the definition of the bargaining unit remains substantially the same, and a majority of the successor's employees in the unit came from the predecessor. The opinion in Burns does refer more than once to the fact that there had recently been an election in the predecessor unit, but I think that none of the weight of the Burns decision can rest on that fact.
Sandra Day O'Connor: Mr. Cohen, isn't the expectation of an imminent expansion in the number of employees a factor to be taken into consideration in applying the Board's substantial and representative complement approach?
Louis R. Cohen: Yes.
Sandra Day O'Connor: And shouldn't it be a factor, if it is known that there is going to be a significant expansion in the number of employees? Isn't that something the Board should take into consideration in applying the test, when you have one of these successor employer situations?
Louis R. Cohen: Yes. The Board's test for substantial and representative complement is whether the operation is in substantially normal... the enterprise is in substantially normal operation and the positions have been filled, and the Board says that it also takes into account the number of employees--
Sandra Day O'Connor: All right.
Louis R. Cohen: --and the likelihood at expansion.
Sandra Day O'Connor: All right. Let me tell you what troubles me about the Board's action in this case, because I would appreciate your discussion of it. Fall River expected, and it was known that it expected to double the number of its employees from about January until April, it planned to go to a double shift. Now, the Board seemed to look at this situation as though it were frozen in time about the end of January, and given the fact that it is known that within quite a short time they expected to double it, do you think the Board really took that factor into consideration the way it should have?
Louis R. Cohen: Yes, I do.
Sandra Day O'Connor: I think these are troublesome cases, and the reason they are troublesome is because the employer is in a dilemma here about the timing of when he is forced... or when the employing unit is forced to look at the situation of a representative and substantial complement.
Louis R. Cohen: First, I think the Board did properly take the facts into account here. Let me start with the numbers. On January 15, 1983 when the Board determined that there was a substantial and representative complement, 36 out of 55 employees had come from Sterlingwale. As of April 22 when the petitioner says that it had completed its hiring, by my count based on Exhibit GC-8, 52 or 53 out of 107 employees in the unit had come from Sterlingwale. The Board concluded that petitioner, having started up in September and having had at all times thereafter until late in March an absolute majority of employees who had come from Sterlingwale, and being... and this is a finding of fact... in normal operation of a full shift, and saying that it was starting a second, but here is Mr. Chase's direct testimony on that point. He says at page 208 of the Joint Appendix: "Our plan was to have one full shift operation of 55 to 60 employees and after we reached that goal then we'd see how business would be and then we had planned that by the end of March, April, we should be in a full two... shift operation. " The Board said: "Looking at the problem from the perspective of January 15, the employees were entitled to be represented on that date when the business was up and running. "
Sandra Day O'Connor: Well, are you just saying the Board didn't have to give credence to the fact that they planned a second shift, that the Board's decision can be supported on the ground that they didn't have to accord credibility to the plan of a double shift?
Louis R. Cohen: No. I'm saying that the Board didn't have to treat the plan as firmer than Mr. Chase testified that it was. The notion that there is a neat objective, defined in advance, that the petitioner was always aiming at and which it had only achieved part of in January, is largely an afterthought, rather, as in most of these situations in real time, the employer is--
Sandra Day O'Connor: Yes, but when was the Board looking at... the Board wasn't looking at it. In fact, they held a hearing when, long after this had happened?
Louis R. Cohen: --No. The hearing was at the beginning of May.
Sandra Day O'Connor: Well, by then they knew that a shift, a second shift had been added, so why weren't they interested in looking at what really happened?
Louis R. Cohen: They were looking at, first, the fact that there was at all times very substantial continuity in the bargaining unit... even as of May 2nd there was, as I say by my count they were only a half a Sterlingwale employee short... but also at the fact that as a successor employer starts up, its ultimate objection, and whether it will get there may not be clear and the operative rule for employers and for unions ought to be that when the enterprise has reached substantially normal operation the employees are entitled at that point to a determination of their right to be represented.
Sandra Day O'Connor: If the Board had looked at the situation as of mid or late April, would it have still been able to find at that time that this union should have been recognized?
Louis R. Cohen: The Board's rule is that it looks for a majority of a substantial and representative complement and on April 22, as I says there was slightly less than a majority. But let me also--
Antonin Scalia: I agree with you, Mr. Cohen, that there ought to be a clear rule, that the employer ought to know and the Board ought to know. Aren't there consequences beyond the were moral opprobrium of being cited for an unfair labor practice if the employer doesn't know whether he yet has a substantial and representative complement? For one thing, isn't it the case that if he fails to bargain with the union wrongfully at that ineffable moment, whatever it is, he won't be able to have an election for the next... what is it, the next year, because he will be deemed to have interfered with the normal process?
Louis R. Cohen: --That may be. I'm not sure that that is true, that that is true in this case. But I also think that this is--
Antonin Scalia: If we're not sure about it, then you know, your brief says no big deal, if the employer makes a mistake as to when that magic moment of a substantial and representative complement arrives, nothing happens except he is cited for an unfair labor practice. Now, you say it may well be that in addition to that he will not be able to have an election in that year, for another year because of his good faith failure to realize when the magic moment has come. That's pretty substantial.
Louis R. Cohen: --I don't think that the employer is, in fact, in any such puzzlement. He knows that he has taken over a predecessor employer and he knows that he has so far hired a substantial... a majority of his employees from the predecessor's rank and file, and he knows that he is in--
Antonin Scalia: Do you know as of what time that is being measured?
Louis R. Cohen: --And he knows that he is in substantially normal operation and he knows that he has filled--
Antonin Scalia: What is substantially normal operation... what does "substantial" ad "representative complement" mean? Representative of what? Representative of--
Louis R. Cohen: --I was going to say, he knows that he has filled the various positions, staff positions that he has. "Representative" means having some employees in each... or substantially all employee categories.
Antonin Scalia: --Such categories as what, supervisor versus non-supervisor, or--
Louis R. Cohen: Such as cutter versus finisher versus... not supervisor versus non-supervisor, but the categories of rank and file employees here, people who work on different machines, work on different parts of the process.
Antonin Scalia: --You mean, if it wasn't just a separate... another shift of the same operation that was going to be added here but rather a whole separate operation?
Louis R. Cohen: Yes. This is--
Antonin Scalia: Then you wouldn't have had a substantial representative complement?
Louis R. Cohen: --You might not. You might--
Antonin Scalia: Maybe?
Louis R. Cohen: --This is--
Antonin Scalia: Yes or no, would that alone have been enough to make it clear that it was not a representative complement? The fact that the other half of the business he was going to add was a totally different element of the business, it wasn't finishing... what was the opposite of finishing, finishing and whatever the other one was.
Louis R. Cohen: --Converting.
Antonin Scalia: Converting, whatever it is, would that have prevented it from being a representative complement? The thing is, I have no idea what the Board means by a representative complement, and if I don't, I don't know how an employer does. If he doesn't, I think he is put at a very unfair risk.
Louis R. Cohen: This was an employer who, but mid-January, was engaged in one full shift of what he wanted to do, a finishing and dyeing operation. He had hired employees in all the categories of work that needed to be done in that shift, and the employer had reason to knew that he was in business. It is true that he was going to see how business would be, and had plans to add a second shift. But it this had been an initial representation situation, I think the Board under well and long established Board cases, would have said it is appropriate for the employees who are working on this first shift to be entitled to have a representation determination now and not wait until the employer says that he has hired--
Byron R. White: Well, would you say that either in this case or in an initial representation case, if no one disputed that the employer was going to add a second shift? Let's assume the Board found he was going to add a second shift but nevertheless we order bargaining because a majority of the first shift are old employees.
Louis R. Cohen: --I think that might depend on how long it would take and how certain it was, which isn't--
Byron R. White: All right. I'll just add another fact. By April there is going to be a second shifty or by March there is going to be a second shift.
Louis R. Cohen: --I think that the Board, in weighing the right of employees to be represented during a critical point, in staffing up against whatever considerations favor waiting for the ultimate electorate to be formed, might well say employees have the right to be represented on the way up, even it it clear--
Byron R. White: If that is your position, the Board's position, I can't imagine that if it so turns out, when the second shift is completed, that these old employees are a distinct minority, can't imagine that the employer would be foreclosed from asking for an election.
Louis R. Cohen: --In this case--
Byron R. White: Just take my case.
Louis R. Cohen: --I think that the employer may, in your case or in this case, when presented with concrete evidence that the union no longer commands majority support, seek to have the--
Byron R. White: No bar, no bar, no time bar on it. When he gets his second shift completed it's perfectly clear that, to him at least, that a majority of the employees are not from the old employer and a majority of the employees, as far as he can tell, don't want a union. Now, can he then, right then, even though he has... even though the Board has ordered him to bargain with the union at that earlier stage, can he then immediately ask for an election?
Louis R. Cohen: --Yes, if he bargained with the union....
Byron R. White: Will he he get it?
Louis R. Cohen: --at an earlier stage, and he will get it if he can present to the Board concrete evidence of a loss of support.
William H. Rehnquist: Well, you say loss of support. Would the facts of Justice White's hypothesis amount to a loss of support?
Louis R. Cohen: Our position is that there is a presumption, and that the presumption carries over to the new employer in a situation like this, but that where there is no recent election as there had been in Burns the employer may immediately rebut the presumption after... whenever it appears that there is no longer majority support in the bargaining unit for the union.
Lewis F. Powell, Jr.: May I ask this question, a hypothetical before you carry on? Let's assume, for example that when the old company went out of business, there were some entrepreneurs not connected with the old company who thought, "Well, there are some customers out there who need to be served. " "The old company had old equipment. " "We can buy new equipment and perhaps serve them more economically. " The new company then advertised in the newspaper for employees. It made no particular pitch for the employees of the bankrupt company. What would be the situation then with respect to the duty of the new company to bargain with the old, defunct union? Let's assume further that in response to the advertisement, the new company ended up with a majority of its employees who were members of the old union and had worked for the old company.
Louis R. Cohen: I think--
Lewis F. Powell, Jr.: If all you had was continuity of employees that resulted from public advertising?
Louis R. Cohen: --Well, I think that under the Burns case, that is essentially... that the Burns case covers that and that the Burns case tells us that there is sufficient continuity there. But that is not this case.
Lewis F. Powell, Jr.: But is all you need continuity of employees without regard to any other facts?
Louis R. Cohen: No, the Board has a seven-factor test and as to each of the seven factors which have been endorsed by this Court, there was either total or very substantial continuity here. Here the continuity was deliberate. Fall River was founded by a major customer and a vice president of Sterlingwale. They bought the production facility and the machinery in it in a single contract and not on the open market and not via foreclosure, except that there was a foreclosure sale to see whether there would be a higher bidder for the equipment. But there is a contract which appears at page 238 of the Joint Appendix among the founders of Fall River Dyeing and Mrs. Anson, the widow of the founder of Sterlingwale and the creditor who held the mortgage on the production building and the creditor who held the mortgage on the machinery and equipment in that building, and by contract they bought it all. Then they hired 12 supervisors, 11 of whom had been Sterlingwale employees, and they hired them by calling them on the telephone, according to Mr. Chase. Those supervisors then selected rank and file, and Mr. Chase said each department supervisor basically knew the workers or knew the operation, and on their recommendation we did the employing. This was a deliberate replacement of the Sterlingwale commission finishing operation, not its converting goods for its own account operation, but everyone including Mr. Anson testified that as far as production was concerned there was no difference between the two. It was a deliberate continuation of the earlier operation with employees--
John Paul Stevens: Mr. Cohen, I understand you are saying this case is not the same as Justice Powell's hypothetical, but how did you answer his hypothetical if the employees had come in, in response to newspaper ads but you got 60 percent of them, were former employees? Would the result be different?
Louis R. Cohen: --I think that the result is not different if you end up with all the pieces together the way they are here, even if it is by accident, in part because the theory is not that the successor employer inherits obligations of its predecessor because of some relationship it has to the predecessor.
John Paul Stevens: So, for this purpose we can just look at the numbers and we don't have to get into the details of how they happened to get hired?
Louis R. Cohen: Or the Board could and the Court of Appeals could determine that the Board's finding of continuity here was supported by substantial evidence.
John Paul Stevens: Let me ask you one other question about the fact that in... I get the dates a little mixed up... in January they knew they were going to the full complement in April. Did you answer Just ice Scalia's hypothetical about, instead of just having more people doing the same thing, they were going to add... instead of finishing and dyeing they wanted to go to converting or whatever the other... go from one kind of fabric to corduroy, but the addition was of a different character than what they had at the time. Would that be a different case?
Louis R. Cohen: I think that it could well be a different case because it might not be a representative complement of employees. If, on the other hand... if on the other hand it was agreed as it was agreed here that the operation--
John Paul Stevens: Just more of the same?
Louis R. Cohen: --Was more of the same and that the same bargaining unit definition stipulated that the same bargaining unit definition was appropriate for the successor employer here as for the predecessor--
Antonin Scalia: Is that what "representative" means, representative of the various bargaining... see, "representative" means nothing to me unless I know what it's representative of, representative of the age that all the employees are going to be, or their races or of their skills, or what?
Louis R. Cohen: --I am sorry, I tried to answer before. It means representative of the various jobs that are within the bargaining unit definition, so that you have some employees who are doing each of the things that the bargaining unit will... is expected to do.
Antonin Scalia: Whether or not the jobs are all in the same classification as far as representational obligations are concerned?
Louis R. Cohen: Well, I am not sure I understand your question. Well, you might have a number of quite different jobs in the same bargaining unit, may you not? Yes.
Antonin Scalia: Okay, So, it doesn't hinge on, representative of the various--
Louis R. Cohen: This case would be quite different if there were any question whatever about the appropriateness of the definition of the bargaining unit, but there isn't. In this case it's agreed that it's the same definition as had applied before, and the question question is, do we have enough people in the unit and are they sufficiently representative, and is the operation in sufficiently normal status on January 15th so that it becomes appropriate to say, are the employees entitled to representation today or not. The question would be essentially the same, whether the determination is made by counting the number of employees who carry over from the predecessor, or is made by an election, and the importance of ordering bargaining to begin at about that point is that the employees' rights to be represented at all would otherwise be postponed through what is a critical period in the enterprise until the employer says, yes, indeed, I have now finally hired my last employee, now let's count. Let me say just a word on the issue of the continuing demand. Actually, before I do that I want to say a word about the employee petitions here. The petitions which were put together on April 29, three days before this hearing, were quite clearly identified in the testimony as having been produced by a fear that this very proceeding would take three years and that the employees would not get a raise until it was over. In addition the ALJ properly rejected those petitions on the ground that petitions signed on April 29 did not have a bearing on the issue that was before him, which was the obligation to bargain as of January 15th. The Board's treatment of the union's demand as a continuing one, and as therefore outstanding on January 15 was, I think, correct as a matter of fact in law. There is no doubt in anyone's mind, was no doubt on January 15th that the union was in fact still demanding recognition. There is no reason to require a union to keep sending demands as the employer staffs up. And there is nothing wrong with the Board's sanctioning a procedure under which the union makes a demand when the employer starts operations, and that demand, if not ripe at the outset, attaches whenever the employer who is in the best position to determine the facts has achieved the requisite complement of employees, if the requisite continuity of both the enterprise and the bargaining unit are then present. The employer can, I repeat, and is in the best position to determine when he is in substantially normal operation and has a representative complement as it has been defined. The suggestion in the briefs that he has to worry about jumping the gun in that situation seems to me to be... and suffering an 8-A-2 violation seems to me to be farfetched and there never has been an 8-A-2 charge in any such situation, recognizing the union that had represented the employees of his predecessor and there is a majority in the unit at that time. And there is, with the tolerable certainty that is the best we can expect in any such situation, I think, a workable ability to determine when a substantial and representative complement has been achieved.
Antonin Scalia: --Mr. Cohen, why shouldn't we give some weight to the dictum in Burns where we did stress the fact that there had been an election within the prior year? I mean, what we have here is one hypothesis heaped upon another until the result you get is quite unrealistic. That is to say, we are assuming that it's the same employment unit, and there are a lot of factors that go into that so we give the Board the benefit of the doubt. We also assume if you hire a majority of the employees of the former company you will happen to hire the same majority who favor the union in that company, that is that--
Louis R. Cohen: No, if I may, we are not assuming that.
Antonin Scalia: --Why not?
Louis R. Cohen: Because the rule of law here is that there is a presumption of continuity until there is a contrary showing, and the dissent in Burns was obviously correct, that you couldn't tell from the arithmetic in Burns whether any of the employees had in fact voted in favor of the union. Nevertheless, It didn't trouble the Court because the Court wasn't making a new affirmative determination by proxy of actual union sentiment. It was applying a continuing presumption--
Byron R. White: That is different than an assumption?
Louis R. Cohen: --Yes. Thank you.
William H. Rehnquist: Thank you, Mr. Cohen. Mr. Drogin, you have three minutes remaining.
Ira Drogin: Thank you, Your Honor. Mr. Justice Scalla has put his finger on the problem from the employer's interests in this case, and that is that we come to a completely unrealistic approach and result, particularly with regard to the continuing demand situation. We find a demand initially made which would have been unlawful for the employer to accept because at the time that it was made, the employer did not have in its employ a substantial and representative complement, whatever that may mean. The demand continued to be an illegal demand at the time that the union filed unfair labor practice charges. It also continued to be an illegal demand at the time that the National Labor Relations Board issued its complaint in December of 1982. The only time that the demand became legal, according to the continuing demand theory, was a year and a half afterwards when the Administrative Law Judge decided that in January 1983 the employer had reached representative complement. Now, this--
Antonin Scalia: No, it began... a fair description, they said it became legal when it reached a representative complement, Now, you didn't know that until a year and a half later.
Louis R. Cohen: That's correct. We didn't know until the Administrative Law Judge a year and a half later, in 1984, told us that we should have recognized the union and bargained with them in January of--
Antonin Scalia: But it became a legal demand when it became a legal demand whether or not you knew it at the time.
Louis R. Cohen: --That's correct, but how are we supposed to comply with the law under those circumstances, and how--
Antonin Scalia: Is that any different from what an employer who is starting up a new business confronts? Let's assume that you hadn't bought this business from anybody and you were just beginning to build up your worker force, and a union came in when you were just... the same things happened as here. Wouldn't you have confronted the same problems? Isn't that problem unavoidable?
Louis R. Cohen: --That it was a continuing demand?
Antonin Scalia: No, no. Never mind the continuing demand. Wouldn't you be at risk when a union asked to be represented to determine whether you yet have a representative working force? Wouldn't you be at your own risk?
Louis R. Cohen: Not because under Linden Lumber, under those circumstances if the employer refuses to recognize the union... excuse me, if the employer refuses to recognize the union, the employer has no obligation to go to the National Labor Relations Board to file a representation petition. The next step is up to the union. If it thinks it has the 30 percent showing of interest that's necessary to get its foot in the door, then it's the union's obligation to go... and there is no finding of violation, there's no finding of violation of the law on the part of the employer, and we are not talking about a successor situation now, Your honor. We are talking about an ordinary situation where the union comes in and makes a demand, and here to compound the situation the demand was based not on the claim that they were a successor under the law but they were a successor under the terms of an expired contract that Fall River had nothing to do with.
William H. Rehnquist: Thank you, Mr. Drogin. The case is submitted.