Earl Warren: Mr. Come, you may proceed.
Norton J. Come: May it please the Court. As I started to point out at the -- at the recess, the kind of situation that you had here -- well, you had the continuing application in the union security clause going on. We kept the dispute, as the court below pointed out, rankling at least once a month in the mind of the employees, and the record bears this out. It shows that an error of uncertainty prevailed among the employees as to how the Union got in when they learned of the union security agreement. Their inquiries met evasive replies and accusations of being troublemakers. Now, what --
Hugo L. Black: What are you quoting from now?
Norton J. Come: I'm quoting from the -- my --
Hugo L. Black: I just want to read it if it is in the record.
Norton J. Come: I think that the findings of the Board, as set forth in -- in our brief, bear out -- I'm paraphrasing, Your Honor, “However, the continued application of the contract kept the employees wondering and toward the end of the first year of the contract when it became appropriate to reopen it, the questioning resumed and at this time, the IAM representative explained to a group of the employees that the Union had gotten in because it had the company connected with Bryan over a barrel.” This is at Record Reference 101.
Speaker: (Inaudible)
Norton J. Come: The IAM representative explained to the employees, as late as the summer of 1955, about 10 months after the contract had run when they were continuing to wonder why it is that they -- that the IAM had -- had gotten this contract.
William J. Brennan, Jr.: Who passed the barrel? Well, I --
Norton J. Come: That the Union had gotten in, this is the IAM representative explaining to the employees because it had a company connected with Bryan, the petitioner here, over a barrel. In other words, the contract with the Union and Bryan was part of the quid pro quo for settling some other dispute that the Union had with another related employer. And shortly, thereafter, the charges here were filed. So you didn't have something that -- that died down right at the outset. And, we submit, the realities of industrial life are such that, in a matter of this sort, you do not end with the execution of the contract, particularly where, as I pointed out earlier, you have new employees that are being added here throughout the period.
Hugo L. Black: Who was the witness who testified there?
Norton J. Come: I believe it was one of the employees, Your Honor. That's at Record 101, testifying as to what the union organizer, Mr. Schwartzmiller, had told him.
Hugo L. Black: Is this Local 701 of the CIO?
Norton J. Come: This is Local 1424 of -- it was -- I didn't get your question. Was the witness --
Hugo L. Black: I mean to say --
Norton J. Come: -- a member of --Did the CIO have -- have a contract any time during its term?
Norton J. Come: No, Your Honor. This is the Machinists representative, Local Lodge 1424, the petitioner here, explaining to one of the employees at the plant as to how it was that this Union got into the plant and got a contract which compel the employee to join the Union. The Board credited this testimony.
Hugo L. Black: When was that given?
Norton J. Come: That was given in June of 1955, after the contract had run about 10 months, Your Honor, the -- the initial contract. So, we have here a situation --
Earl Warren: Well, what there -- by that, do you mean that he said they had them over a barrel and -- and they forced him to do it?
Norton J. Come: That is correct.
Earl Warren: The reason I -- reason I ask that is because the next question was what -- was anything else said? Answer -- “Was anything said by anyone else on that?” Answer, “Well, general conversation.” Question, “What was that general conversation?” “They wanted to crept to -- they wanted to get it across that they came in legal.” That's what they were trying to get across to us. Apparently, not that they had not gotten them over a barrel and coerced them into do it, but -- doing it but, apparently, that they -- there were some relationship that made it legal for them to do this.
Norton J. Come: Well, the inference, Your Honor, that the Board draws from this testimony and from the related testimony of the other witnesses was that the union organizers made no secret about the fact that they got in not because they had organized the employees but because the employer had given them a contract.
Charles E. Whittaker: Well, that's not disputed, is it not?
Norton J. Come: No, that is not disputed. The Union is not denying here or disputing, as I understand it, the findings of the Board that it did not have a majority at the time the contract was -- was entered into. I just wanted to indicate that the employees continued to have some question about this, long after the contract was -- was executed.
Speaker: Does that bear on the issue you've got?
Norton J. Come: Well, I think it bears on -- on the issue in the sense that the argument is made that the statute of limitations are intended to -- to give repose. And our answer to that is that, that is true in a situation where the conduct has stopped but where you have a continuing enforcement of the contract, as you had here, you continue to dispute and it rankled -- it bothered the employees each month, and I was just pointing out that that fact which you could reasonably expect would happen was indeed borne out by the -- by the record here.
Felix Frankfurter: Now, you want -- I beg your pardon.
Speaker: You have that same -- you could make that same argument in the (Inaudible) where there's no union security clause involved.
Norton J. Come: I think you could, Your Honor, but you'd have greater difficulty in -- in proving that that was sought. I think that where you have something as affirmative as a continuing collection of dues, you are taking some positive steps within the period to continue the wrong that was perpetrated at the -- at the outset.
Speaker: Supposing the Union, during this period, had been complaisant about the -- the security fee, it accepted the fee and voluntarily paid a followup -- followup on those who pay, what would your situation be like?
Norton J. Come: Well, I think that we might get close to those company union cases that Mr. Dunau has -- has cited. It might make a difference where there was no -- where the situation remained passive within the period, but that is not this case and I think that, in this case, we have some very positive acts that were occurring which are clearly -- would amount to additional unfair labor practices but for the 10 (b) problem here. And we submit that that is no barrier here because we looked at the past events merely for shedding light on what occurred here. In other words, what I'm trying to say is that whatever may be said of the situation you present, Mr. Justice Harlan, it's pretty well settled, at least in the Courts of Appeals, that you have separate unfair labor practices not only when you enforce an illegal union security clause. You've got an unfair labor practice at the time of the execution and you have got it when you -- when you enforce it. The Second Circuit, I think, made that clear in the Gaynor News case which is a little bit closer to the situation that we have here than the illegal on its face cases that I mentioned at the -- at the outset. In the Gaynor News case, you had a union security clause that was illegal not because of anything that appeared from the face of the contract, I mean, the clause there provided for becoming a union member within 45 days is permitted by 8 (a) (3), but the clause was illegal because, at the time the contract was entered into, there had not been a union shop election as required by Section 9 (e) of the Act. So, it was necessary to leave the face of the contract for the purpose of ascertaining whether this past event had occurred. And the Board found and the Second Circuit in an opinion by Judge Frank upheld the Board's finding that 10 (b) was not barred here. Whatever may be said about the execution of the contract, the maintenance of that illegal contract within the limitations period, notwithstanding the fact that you had to leave the face of the contract to determine its illegality, was a separate unfair labor practice as to which, as Judge Frank put it, the limitations period had not yet begun to run.
Felix Frankfurter: Now, are you arguing, in effect, that through the active enforcement of the 1954 agreement within the statutory period, the 1954 agreement has made a continuing unfair labor practice just as an innocent overt act may continue a conspiracy to demand people in jail or the conspiracy itself has been outlawed and nothing remains except this innocent overt act which pose the agreement into the requisite statutory period? Is that what you're arguing?
Norton J. Come: I think that my argument comes close to that, Your Honor.
Felix Frankfurter: Well, it's a very different thing from saying that the original illegality is a continuing illegality and saying that an isolated act within the statutory period is a new unfair labor practice. They are different things. It may come to the same result but I think the analyses are different.
Earl Warren: Well, Mr. Come, let me ask you this. Suppose this charge had not been brought when it was and toward the end of this three-year agreement that they had, the parties entered into another agreement for five years, based upon the same relationship, and nothing was done there until toward the end of the five years of the next contract. Could they date that back to -- to this unfair labor practice that you are talking about and -- and avoid those situations then?
Norton J. Come: I think that the logic of the -- of the Board's position, assuming that the contract continued to be enforced --
Earl Warren: Yes.
Norton J. Come: -- would permit that. However, we have running across that however. The concurrent principle of the weight and relevancy of -- to be given to -- to ancient evidence in a situation such as that, it might be extremely difficult for the Board to obtain any probative evidence that could establish the original illegality.
Earl Warren: That's true. Well, these don't -- these don't bother about how difficult it would be. Would -- would the Board have the power to do that in the light of this Section 10 (b)?
Norton J. Come: I think it would, Your Honor.
Charles E. Whittaker: Your answer, if I understand, is upon the maintenance of a relationship --
Norton J. Come: It --
Charles E. Whittaker: -- not the making of a contract so you can go except the record you (Inaudible) what is done yet to be (Inaudible) it may be legally justified by it, is that it?
Norton J. Come: Yes, Your Honor. We are not predicating any liability on the original making of the contract. We are looking to the events surrounding that and it's not necessary for us to determine that that is an unfair labor practice. It's -- it happens to be accidental that those past events would to add up to an independent unfair labor practice of their own, but that is irrelevant to the use which the -- which the Board puts the facts that it gathers from the past period.
Charles E. Whittaker: Why do you look to it (Inaudible) at all?
Norton J. Come: Well, we look to the making of the contract to see whether or not, within the current period, the Union has available to it the defense that it is privilege to exact these dues payments because it was the majority -- it is the majority representative. The collection of -- of dues and the requiring of employees to join a union as a condition of employment is the clearest form of violation of the Act and had we had nothing more than that and this contract were -- were not in the picture, there'd be no question that there'd be an unfair labor practice. Now, the company comes forward with the -- with the contract. At that point, the question is whether the contract really affords them a defense, and the Board is going to the past period there to ascertain whether or not the defense of majority status is available to the Union with respect to the acts that it's performing currently.
Hugo L. Black: Is there anything in the Act, aside from 10 (b), that would provide for any repose, any lack of -- any -- any time at all within a period of years which would make the contract not subject to attack if it would had originally a -- some defect in it, nobody raised it and it was renewed and renewed from time to time for 10 years? Is there anything in the statute?
Norton J. Come: No, Your Honor, I do not think that there is, other than the difficulties of proof that you would have.
Hugo L. Black: Well, I suppose you -- if it -- like you do now, you'd look back to this first time am I -- employees might have going along for years. If you ask what year, it's been almost a year, and you just look back to see what happened the first time, then there is no statute of limitations.
Norton J. Come: There is a statute of limitations with respect to a conduct that has -- that has seized.
Hugo L. Black: As I understand it, here, you will seize it if they have a contract and then renewed a contract and renewed a contract and renewed a contract. It's still going on. That's right, isn't it?
Norton J. Come: That is right, Your Honor. The original dispute is being continued currently. It's the -- it's the nature of this particular controversy.
Hugo L. Black: Do you think the Court, under circumstances like that, they might -- I expected you to give another answer, maybe it's -- maybe it wouldn't be a good answer, the courts is just acting somewhat in the equitable capacity to hold that it's barred by laches?
Norton J. Come: Well, it's been held that laches does not apply to the Government in particularly, the Board proceedings. However, the Board itself, prior to the enactment of 10 (b), did have a laches principle which it invoked on its own. If it found that an employee, for example, was unduly delayed in -- in filing a charge of a wrongful discharge, it would toll the running of -- of back pay. And I think that it is within the Board's discretion and power to do that even apart from -- from 10 (b). Now, I'd like to talk --
Earl Warren: May I ask you --
Norton J. Come: Yes, Your Honor.
Earl Warren: -- from -- before we get to that? Is there any other case prior to this one in which the Board has delineated this policy that you might refer us to or is this the first time that -- that they have done it?
Norton J. Come: Well, the -- as I -- as I think I indicated earlier, this continuing violation theory is not a new one. That has been applied in a number of -- of illegal union security cases, all of which are mentioned in our brief, in situations where the agreement was invalid on its face --
Earl Warren: On its face.
Norton J. Come: -- or in the Gaynor case were not on its face but because of some condition that they didn't satisfy with respect to getting a union authorization election. This is the first case where the infirmity in the contract is of the type that -- that we have here.
Earl Warren: I believe valid on its face.
Norton J. Come: Valid on its face, yes, Your Honor.
Earl Warren: Yes.
Charles E. Whittaker: Mr. Come, what was the (Inaudible) and you drew as pertinent to this contract, and they do it defensively to show the justification for what's done today. Is that right or is it you, the Board, who relies on the contracts?
Norton J. Come: Well, I think, analytically, it is probably the company and the Union that do but as soon as the contract comes to light, the burden is then shifted to the -- to the Board to establish the validity of the contract.
Charles E. Whittaker: Or the invalidity.
Norton J. Come: Or the invalidity of it.
Charles E. Whittaker: But until the contract is asserted defensively and the justification which they conduct, there is no such issue, isn't it?
Norton J. Come: I think, analytically, that is right, Your Honor.
Hugo L. Black: In fact, it broadened it.
Norton J. Come: Well, as a -- as a practical matter, the Board, in investigating these cases, is going to try to anticipate possible defenses, and they're going to look to see whether or not there is a contract in the --
Hugo L. Black: But they knew that, didn't they?
Norton J. Come: What's that?
Hugo L. Black: When they started out, they knew there was a contract.
Norton J. Come: Yes, Your Honor.
Hugo L. Black: Wanted a way to find it's invalid or to do something on it.
Norton J. Come: But I think, analytically, it is correct that the contract is a -- is a defense because if you did not have the contract in the picture and you had only the allegation that the employees were being compelled to join a union and pay dues on its face, there, you -- you have, unquestionably, a -- a prima facie violation of the Act.
Hugo L. Black: By the way, do you have now, without waiting for the memorandum, the cases where the company applied this rule, where the Board applies this rule in company union cases?
Norton J. Come: I do not have them. Mr. Dunau has cited some in his brief, and I was going to supply some additional --
Hugo L. Black: Do you mean it supports your view point?
Norton J. Come: No, “dissupport” his view point.
Hugo L. Black: Well, when -- don't you have any cited that supports yours in what the Board had done before in company union cases?
Norton J. Come: Well, I -- I have them to support my position in what the Board has done in other situations where they have --
Hugo L. Black: I know. What company union situations?
Norton J. Come: The one -- I have one company union case, namely, Superior Engraving, which is cited in our brief.
Hugo L. Black: What's -- what's the name?
Norton J. Come: Superior Engraving. That is a Seventh Circuit opinion, Mr. Justice Black, which is 183 F.2d 783. In that case, I might indicate, the situation was this. You had a refusal to bargain and unilateral wage increases within the limitations period. At the time this occurred, the Union did not have -- did not represent a majority of the employees. Therefore, the employer's action --
Hugo L. Black: What union was that?
Norton J. Come: What's that?
Hugo L. Black: What union was that?
Norton J. Come: I don't remember --
Hugo L. Black: Was it a regular --
Norton J. Come: -- the union.
Hugo L. Black: -- or a company?
Norton J. Come: No, it was not a company union.
Hugo L. Black: It was not a company union.
Norton J. Come: It was a regular union. Therefore, the employer's action was unlawful only if the loss of majority were attributable to prior unfair labor practices. Now, in that case, it was held that Section 10 (b) did not bar evidence that the employer had engaged in 8 (a) (2) activity with respect to another union which had the effect of dissipating the majority of the outside union within the limitations period. And the Board's finding of a refusal to bargain was sustained by the -- by the Seventh Circuit.
Hugo L. Black: Was that as part of the evidence? Did they base it, the holding, at all on the unfair -- on the unfair labor practice at the beginning?
Norton J. Come: Yes, it was based solely on that because all that you had within the limitations period were actions which, standing alone, did not give you an unfair labor practice.
Hugo L. Black: I'm not talking about standing alone. What -- you had actions if -- that the Board put its holding on them. They didn't put it in part on -- or did it, put it in part on the original making of the -- of the original one that was barred?
Norton J. Come: The original one that was -- that was barred, the assistance to the company union was the basis for finding that the loss of majority of the independent union within the period --
Hugo L. Black: You mean they used that as evidence from which to infer that later on, it was wrong.
Norton J. Come: That is correct.
Hugo L. Black: Constitute an unfair labor practice.
Norton J. Come: That is correct, Your Honor.
Earl Warren: In -- in your brief, Mr. Come, did you respond to the citations that Mr. Dunau had in his brief one of these company unions?
Norton J. Come: I don't think that we did, Your Honor, because we regarded the situation there as being distinguishable in view of the fact that you did not, in those cases, have any of the affirmative action that you had in -- in this case.
Earl Warren: But you didn't distinguish them for us in your brief.
Norton J. Come: No, Your Honor.I intend to do that in this memorandum that I have leave to follow.
Hugo L. Black: You had his brief before you wrote yours?
Norton J. Come: Yes, Your Honor, we did.
Earl Warren: Well, you go -- you mean going to write a brief now for us?
Norton J. Come: No, Your --
Earl Warren: Isn't that --
Norton J. Come: No, no, Your Honor, I am not. As --
Earl Warren: I must ask for the cases.
Norton J. Come: As -- as I understand it, that is right, and Mr. Justice Frankfurter requested, and I understood that that was to be included, that I comment upon Mr. Dunau's cases.
Earl Warren: All right.
Felix Frankfurter: May I ask you this. Quite -- what do you do with the legislative history, more particularly, the -- the reference to the rider in Senate Report 105? And I ask that because the Board, in construing this -- in dealing with this problem and recognizing the novelty of it, as they did in terms, don't seem to discuss the legislative history problem.
Norton J. Come: Yes, Your Honor. I was just coming to that.
Felix Frankfurter: Good.
Norton J. Come: We have discussed it in our brief however. We believe that the riders had a broader sweep than 10 (b). In the first place, the language of the original rider which was introduced in 1944 provided in relevant part that no funds shall be used in any way in connection with a complaint arising over an agreement between management and labor which has been in existence for three months or longer without a complaint being filed. This language would have precluded using the agreement for any purposes. You couldn't predicate a violation on the contract even if it were invalid on its face, a situation which petitioners concede would not be barred by Section 10 (b). And I think the reason for that is that, and this is borne out by the legislative history of the -- of the riders, that the purpose that Congress had there was a broader purpose than they had with respect to 10 (b). They weren't concerned solely with protecting against stale claims rather, the riders were designed to prevent interruptions to war production through a tax by outside unions on closed-shop contracts that had been entered into in the -- in the defense industries and -- and the shipyards where the necessary production was being gotten out and the employees immediately involved weren't complaining about the illegality of the contract. In other words, it was aimed at preventing disruption to wartime production. What this wartime objective, Congress could well have continence and, we in -- as we think the language of the riders shows, more of an invasion on the statutory rights of the employees. Then, it was going to permit in 1947 when it came around to enacting a limitations provision as such. And therefore, we think that when Congress said in the Senate Report that the riders were unnecessary because they were now enacting a limitations provision. This was merely a generalized statement to the effect that, since they were dealing with questions of liability for past unfair labor practices, specifically in 10 (b), the rider was no longer needed without necessarily suggesting that the scope of the rider was the same as that of 10 (b) which, from the reading that I have given to this Court, it is apparent that it is not. Moreover, it is very interesting that by the time Congress got around to enacting 10 (b), the rider had -- had been so watered down that in fact, it would even have had less scope than 10 (b) has even under the Board's interpretation because in the years subsequent to 1944, when it was first enacted, they excluded contracts with company-dominated unions. In other words, the three-month bar didn't -- didn't apply to that kind of a contract. They excluded renewals of an -- this is from the riders, renewals of an existing contract on the three-month limitation. And then the very same Congress which enacted 10 (b), despite the fact that they said that the rider wasn't necessary, goes ahead and nevertheless enacts a rider for 1948. And in that rider, they give immunity only to contracts with a majority union, and the reason they say that is that they didn't want to sanction these sweetheart arrangements. But a contract is entered into when the union does not represent a minority.
Felix Frankfurter: Do you think that repealed Section 10 (b) if it doesn't accept the application and the report indicating it has -- should have?
Norton J. Come: Well, I think it -- it means that the statement in the report should not be taken -- given literal effect to it in any way that --
Hugo L. Black: Did it refer to it?
Norton J. Come: What's that?
Hugo L. Black: Did it refer to it?
Norton J. Come: Well, there's no question that 10 (b) -- that the report did refer to the rider. But --
Hugo L. Black: I mean, did the -- this last one you're talking about now, did it refer to the report on 10 (b)?
Norton J. Come: It did not refer to the report.
Hugo L. Black: Did it say anything inconsistent with it?
Norton J. Come: Well, it certainly said the statement that it has made is inconsistent with the interpretation of 10 (b) that the petitioners are urging here.
Hugo L. Black: Is it inconsistent with the interpretation that was shown should be made by that report?
Norton J. Come: I don't think that the report indicates what interpretation should be made. It merely says that they're imposing a statute of limitations and that makes the rider unnecessary.
Felix Frankfurter: May I -- I'm a little confused.
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: I think you can clear me out. A few times in Mr. Dunau's brief, he said also, the House Report No. 105 and, I gather, that report dated April 17, 1947. Is that right?
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: Now, it refers to the current appropriations within the three-month period. The rider to the then current appropriations bill to which the Senate Report referred has this provision which has been in existence for three months or longer without complaint. I understood you to say that at the time this report was written, the rider had been watered down. Is that right?
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: Now, what rider are you referring? It can't be the rider that the Senate Report was referring to because I gather that Mr. Dunau wants me to believe, wants me to assume that the rider referred to in this Report No. 105 is the one he sets forth on page 36, and that isn't any watering down.
Norton J. Come: Well, it is watered down to this extent. It is watered down to the extent that it exempted contracts with company-dominated unions because that was put in 1945 and also, renewals of existing contracts.
Felix Frankfurter: Does that mean -- was that true of the rider of which -- which the next record given on page 36 of his brief?
Norton J. Come: I believe it isn't --
Felix Frankfurter: But it doesn't say anything about this company. It doesn't give any indication that there was anything there except for these quotes.
Norton J. Come: Well, the -- it is Your Honor. The “provided further,” that's down at the bottom of 36 and up at the top, “provided further that these limitations shall not apply to agreements”.
Felix Frankfurter: But it is borne in violation. (Inaudible)
William J. Brennan, Jr.: The report says that (Inaudible) is removed.
Norton J. Come: In the first clause there where it says “no part of the funds appropriated shall be used in connection with a complaint case arriving over an agreement -- an agreement or a renewal thereof”. Now, the Board's explanation of that clause “or a renewal thereof” is given in its report which is on pages 42 and 43 of Mr. Dunau's -- on page 48, I'm sorry, Your Honor.
Attorney: I think it's 48.
Norton J. Come: Oh, it's --
Attorney: (Voice Overlap) --
Norton J. Come: -- on page 44, Footnote 12, and that's borne out by the Comptroller General's explanation of this. Item 2 in the footnote there, under the 1945 amendment, in contrast to the 1944 limitations, the renewal of an agreement --
Felix Frankfurter: Where are you reading from?
Norton J. Come: I'm reading from the footnote on page 44 of Mr. Dunau's brief.
Felix Frankfurter: 44, all right. All right now --
Norton J. Come: Under Number 2 there on the footnote.
Felix Frankfurter: Yes.
Norton J. Come: Under the 1945 amendment in contrast to the 1944 limitation, the renewal of an agreement, even though by virtue of the operation of an automatic renewal clause, starts anew a running of the three-month period during which a charge attacking the agreement may be filed.
Felix Frankfurter: Now, is that --
Norton J. Come: Then, on top of -- of those two things, you have added the majority union exception that I mentioned, which it is true, was passed after the Senate Report was issued but nevertheless, was enacted by the very same Congress which enacted 10 (b).
Felix Frankfurter: Do you regard the valid -- the -- the 1945 contract year as a renewal -- the second contract, the 1950 (Inaudible) I beg your pardon. Do you regard that as a renewal within the term of the rider?
Norton J. Come: I think it could be, yes, Your Honor.
William J. Brennan, Jr.: Well, if it was a rider, the rider wasn't applicable to testify, wasn't it?
Norton J. Come: It wasn't applicable in 1955. It -- it stopped --
William J. Brennan, Jr.: (Inaudible)
Norton J. Come: What is that? No, no, it -- it --
William J. Brennan, Jr.: It's nothing but the 10 (b) though.
Norton J. Come: That is correct, but I'm -- I'm merely saying that if you're going to interpret 10 (b), precisely what the scope that the rider would have had, by the time 10 (b) came around, the rider was watered down to such an extent that it would not have precluded the Board from reaching the kind of a contract that you had in this case.
Felix Frankfurter: If you are to get -- if we are to get illumination from the reference to the rider in the Senate Report, the illumination must be from the totality of the rider and not a part of it.
Norton J. Come: Yes, Your Honor.
Hugo L. Black: Well, as I understand it, you -- what you're saying is watered down. The chief thing they did was to say that company unions couldn't take advantage of this as it give them the repose, is that it?
Norton J. Come: That is one of the things that they said, Your Honor.
Hugo L. Black: You're drawing from that conclusion that --
Norton J. Come: No.
Hugo L. Black: -- could be entirely construed --
Norton J. Come: No.
Hugo L. Black: -- as to those that are not company unions?
Norton J. Come: No, I said they did two other things. They also exempted renewals of an existing contract and finally, in 1948, they exempted the contracts with minority unions.
Hugo L. Black: You mean exempted renewals authorizing an attack on the renewal from the date it was renewed. That's what you mean, isn't it?
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: And that's this case?
Norton J. Come: Yes, Your Honor.
Hugo L. Black: Well, was this -- when was this -- when was this contract renewed?
Norton J. Come: It was renewed in August of 1955.
Hugo L. Black: When was it made?
Norton J. Come: It was made in August of 1954.
Hugo L. Black: But it doesn't come then within the time, the six months, doesn't it?
Norton J. Come: The charges were filed with -- in -- in June of -- in August of 1955.
Hugo L. Black: There would be no -- he would have no case here, would he, if he was claiming -- if you were claiming that unfair treatment of contracts dated from the time the renewal of contract was renewed?
Norton J. Come: Well --
Hugo L. Black: It was within six months of that, wasn't it?
Norton J. Come: Yes, but you would still have to prove the illegality in the renewal from the -- from the past elapsed --
Hugo L. Black: So, we would have -- so that you'd have no repose then.
Norton J. Come: You'd have no repose because they were continuing the contract, and the point I'm making is that you wouldn't have had a repose under the rider either.
Hugo L. Black: Could you -- do you have enough evidence here to justify a holding is an unfair trade practice considering this only as the renewal of the contract? Has that been decided?
Norton J. Come: I think that we have the same -- we would have to rely on the same evidence that we rely on for holding that the maintenance of the old contract and the renewal of the --
Hugo L. Black: Well, you mean you -- you couldn't prove that they had -- didn't have a majority when they made the renewal of contracts, is that it?
Norton J. Come: You couldn't prove it without regard to how the majority was obtained to begin with. It was a coerced majority at the outset.
Hugo L. Black: Yes.
Norton J. Come: And that momentum continued throughout the period because there was nothing done to dissipate the momentum. It was built up by the -- by the original coercion, Your Honor.
Hugo L. Black: Did you try to prove here that there wasn't a majority when they renewed it? They didn't represent the majority?
Norton J. Come: Well, you couldn't do that because the check-off was operating and every employee who --
Hugo L. Black: It has been operating for about 12 months.
Norton J. Come: That is correct, Your Honor, but the question is whether that check-off was properly entitled to operate or not.
Felix Frankfurter: And as a matter of substantive law, the fact that they've been operating 10 months wouldn't make any difference in the orders in which this Court had sustained, telling the employer to take affirmative measures to undo what he had properly -- illegally done.
Norton J. Come: That is correct. That is the holding of the Franks Brothers case.
Felix Frankfurter: Yes. That's what this Court has decided.
Hugo L. Black: Well, is this based on the fact that they've disobeyed an order or is it based on the fact that they made an illegal contract and then renewed an illegal contract?
Norton J. Come: Well, it is not based on an order of this Court but the principle of the cases that Mr. Justice Frankfurter is referring to is that once the employer has engaged in a course of illegal conduct which has had the effect of dissipating the -- the Union's majority, unless there is some affirmative action to remedy that, it cannot, and the Board is justified in -- in so holding, you cannot create --
Hugo L. Black: That was defined in cases where there were no statutes of limitations involved, was it not?
Norton J. Come: That is correct, Your Honor, but the -- but the principle, we submit, is the -- is the same here. My time has expired. I -- I just want to indicate that the Board's position on the reimbursement point, we believe, is fully set forth in our brief. Thank you.
Bernard Dunau: Unless there aren't any questions, I have nothing further.
William J. Brennan, Jr.: I would like to ask this one question.
Bernard Dunau: Yes, sir.
William J. Brennan, Jr.: Suppose this rider in effect (Inaudible)
Bernard Dunau: Yes, sir.
William J. Brennan, Jr.: (Inaudible)
Bernard Dunau: It would have barred this charge because certainly, with respect to the --
William J. Brennan, Jr.: As I understand it, the charge was by (Inaudible)
Bernard Dunau: That is correct.
William J. Brennan, Jr.: Another charge was filed with (Inaudible) contemporaneously, I gather, the renewal agreement.
Bernard Dunau: Well, the -- actually, no. The second charge -- I believe the second agreement was entered into after the second charge was filed.
William J. Brennan, Jr.: After the second.
Bernard Dunau: That is correct.
William J. Brennan, Jr.: They were both filed on August (Inaudible)
Bernard Dunau: One charge was filed in June. The second charge was filed in August.
William J. Brennan, Jr.: And in some other day in August, the renewal (Voice Overlap) --
Bernard Dunau: That is correct, sir, yes, sir.
William J. Brennan, Jr.: Now, under the renewal or rather under the rider, the Board interpreted that in a footnote.
Bernard Dunau: Yes, sir.
William J. Brennan, Jr.: Now, that renewal gave (Inaudible) attacked three months after the respective date.
Bernard Dunau: That is correct, sir.
William J. Brennan, Jr.: Why do you say it's not under the defense?
Bernard Dunau: We -- we can divide it into two parts. The Board made one finding, namely, that maintenance of the first agreement into a -- in effect, constitute a violation of the Act. That could certainly not have been litigated under the rider because it -- the charge came more than three months after that agreement. Now, it seems to me that when the rider said a renewal can be -- a renewal agreement can be attacked within three months, it said, “Yes, from three months on August 31st, 1955, you can attack that agreement,” but I do not think it said at the same time that if your evidence necessary to attack that second agreement has to go back to the evidence which would open the first agreement, and you were barred from opening the first agreement, that the rider would not have protected both the first and the second, otherwise, on the renewal, you would have reopened what have been closed by the first --
Felix Frankfurter: Do you think that attacks the matter that as a matter of evidence, if it's a matter of substantive law, the renewal revives or continues the original illegality that you can't, as a matter of evidence, resort to -- to that which substantively is barred. In other words, if the statute of limitations may bar a cause of action but it doesn't bar other evidence.
Bernard Dunau: It does not bar evidence, Your Honor, except if you're going to get any effect either to the riders or to Section 10 (b). It must bar the substantive unfair labor practice which precedes, by more than six months, the charge, else, you have never barred the unfair labor practice.
William J. Brennan, Jr.: You can't bring it back to anywhere we've been --
Bernard Dunau: I --
William J. Brennan, Jr.: (Voice Overlap) under 10 (b) (Inaudible)
Bernard Dunau: I think you're -- that is correct.
William J. Brennan, Jr.: The problem is different from the rider.
Bernard Dunau: The pro -- yes, sir, it is different because under the rider, there is no possible claim that you there -- under the rider, you have to file your charge within three months of the inception of the agreement. It says so in so many words. Now, our argument is, if under the rider you have to file your charge within three months of the agreement, we cannot understand an interpretation of Section 10 (b) which replaces the rider which says that you do not measure the limitations from the inception of the agreement but from -- well, you don't measure it from anything because it continue -- it never runs.
Felix Frankfurter: And you say -- and you say I can't read the riders to say that the renewal sustained and continues in light of the original agreement and therefore, the effective -- the -- the base point for -- as a matter of time, is the renewal. They're not the original that which is renewed.
Bernard Dunau: What we draw from the riders and all we draw from the riders is that when Congress was dealing with this explicit situation of an agreement valid on its face but illegal because it was entered into with a minority union, it started its limitations period running from the date the execution of the agreement -- from the date of the execution of the agreement and the Board always understood, even after the 1945 rider was enacted which had the renewal language in it. It said in its annual reports, “We cannot attack an agreement once the three months has expired even with a union which did not represent the majority when the agreement was executed." That's what we draw from the riders.
Potter Stewart: (Voice Overlap) say it's true at all that the 1948 rider can provide the security on (Inaudible)
Bernard Dunau: The 1948 rider is a totally different situation.
Potter Stewart: That was being passed in those recent times.
Bernard Dunau: Yes, sir, but it was --
Felix Frankfurter: Did they incorporate it in the committee report?
Bernard Dunau: No, sir.
Felix Frankfurter: No?
Bernard Dunau: No, sir. If -- we'd have a wholly different --
Potter Stewart: That -- that rider, by its very terms, conserve to (Inaudible) or make no limitations.
Bernard Dunau: The 1948 rider was enacted subsequent to Section 10 (b). It's a meaningless rider the way it's written because you don't need a rider to protect an agreement entered into with a majority union. And if you read the rider -- the 1948 rider literally, that's all you get out of it. You get nothing from it. It seems to us that the true explanation of the 1948 rider is that this whole limitations problem had already been settled by Section 10 (b) and if a couple of Senators or Congressmen wanted to enact the limitations rider having a different policy than Section 10 (b), nobody in Congress was interested in opposing it because the problem had already been settled in 10 (b).
Charles E. Whittaker: Mr. Dunau, is the (Voice Overlap) --
Earl Warren: Go ahead.
Charles E. Whittaker: Can I still ask him a question?
Earl Warren: Yes.
Charles E. Whittaker: Is it of any significance to your case that the contract was made in August 1954?
Bernard Dunau: Well, it's significant in that, as a date, it is more than six months preceding the filing of the charge. That's the only significance I draw from August 1954, if I understand the question.
Charles E. Whittaker: Do you think then you are -- aside from that fact, just as well off as though there were no contract at all?
Bernard Dunau: Well, probably not. If there were no contract at all, the Board would have a heck of a lot of more problems by way of proof, but I don't see that -- that -- analytically, it makes a difference whether the contract which reports the relationship is reduced to writing or whether the relationship is a practice which is unrecorded in writing. Now, what we always get back to, and this is the finding of the Board from which, it seems to me, there is no escape of where we must begin, this is a product contract used defensively, all kinds of -- of verbalisms have been resorted to. The finding is explicit. The finding is that at the time the company and the IAM executed the August 1954 agreement, the Unions did not represent the majority of the employees covered by the agreement but that --
Hugo L. Black: What page is that?
Bernard Dunau: I am reading from page 10 of my brief, Your Honor, which cites the Board's relevant finding on this subject. This is the finding, that on August 10, 1954, the company and the Union entered into an agreement and the Union didn't have a majority. And then, we have the crucial finding of the substantive violations. It follows, therefore, and we find that the company violated Section 8 (a) (1), (2) and (3) and the Unions 8 (b) (1) (a) and (2) by maintaining in effect the 1954 agreement and by executing and maintaining in effect the 1955 agreement, both of which, contained unlawful union security clauses. But what the Board was doing was finding that the agreements constituted unfair labor practices, the maintenance in effect and the execution and maintenance of the second agreement. Not defensively, they weren't finding unfair labor practice upon any other basis. And I might just add this, Your Honors, the union security provision of this agreement is, in this case, a red herring. Nothing turns upon the fact that there is a union shop provision in this agreement. We have the cases cited on our brief. Without a union shop agreement, you get exactly the same violation of Section 8 (a) (1) and (2). As the Board has stressed, all that the union shop provision does is to aggravate the violation. It accents it. But the violation exists with or without the union shop provision.
Earl Warren: Very well.


Earl Warren: Number 240, Local Union Number 189, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, et al. versus Jewel Tea Company, Incorporated.
Bernard Dunau: May it please the Court. In the Chicago area, the employment terms of butchers and meat departments, all governed by collective bargaining agreements entered into between meat cutters locals and the food store operators. Central to the question in this case is a provision in those agreements which read like this. Market operating hours shall be 9 A.M. to 6 P.M. Monday through Saturday inclusive. No customer shall be served who comes into the market before or after the hours set forth above. It is said that this agreement is a contract in restraint of trade and violation of Section 1 of the Sherman Act. On the merits of this claim, there are two ways into this problem, one, through the National Labor Relations Act. In our view, based upon the findings and the record, the limitation upon marketing operating hours is with respect to wages, hours, and other terms and conditions of employment. It is a mandatory bargaining subject. And it is our position that an agreement upon a mandatory bargaining subject is not within the coverage of the Sherman Act. An agreement with respect to wages, hours and other terms and conditions of employment is not an agreement in restraint of trade. If we first establish and we have to establish by a record showing what this agreement is about, if we first establish that it is mandatory bargaining subject, then it is our position that under no circumstances does it come within the Sherman Act. When one says it's being used as a façade, I think you will go to a question as to whether or not it is a mandatory bargaining subject. I think that might be relevant to the ascertainment whether the agreement is with respect to wages, hours or other terms and conditions of employment or is in restraint of trade. But it seems to us that once you establish that it is upon a mandatory bargaining subject, then nothing else is relevant. In our case here in Jewel, it happens that the same evidence which establishes that it's a mandatory bargaining subject also establishes that it is within the labor exemption if you look at this case via the Norris-La Guardia Act and Clayton Act exemptions in the Sherman Act.
Arthur J. Goldberg: These that you refer to are part of the present case, suppose (Inaudible).
Bernard Dunau: Then on those facts it would be -- he would not be negotiating a matter with respect to wages, hours and working conditions. He would be negotiating a provision designed to regulate trading hours as such as to that kind of a provision whether it's within a -- prohibited or not by the Sherman Act seems to us to be governed by the rule of reason like any other agreement between businessmen in the heart-- in the instance that Your Honor has posed, it seems to us we are concerned with whether this business agent is in fact acting as an entrepreneur. If he is, then there is no Sherman -- labor exemption at issue at all. If he is acting as an entrepreneur or if a union is acting as an entrepreneur in that capacity it does not come with any Sherman Act immunity. It's like any other businessman. It seems --
Byron R. White: You suggest that a -- that a group of employers who none of whom is organized, does not make an agreement saying that he will look our employees no more than six hours a day and none of us will sell any meat after 6 P.M.
Bernard Dunau: If their agreement is about wages, let me take the illustration they -- or about hours. They don't want to work --
Byron R. White: I just gave you -- I just gave you what the agreement was.
Bernard Dunau: They don't want to work their men longer than six hours, that is hours of employment. Employers are allowed to combine with respect to that subject. It is not an agreement with respect, in restraint of trade. Now, it seems to me that difference between a hypothetical that Your Honor suggests and the one that Mr. Justice Goldberg suggests is precisely the difference between the subjects of the agreement. The subjects in Your Honors hypothetical, as I understand it pertained to wages, hours, and working conditions and employers can combine on those subjects.
Byron R. White: Those -- but if they just came to one another and said we will -- none of us will somebody meat after six o'clock.
Bernard Dunau: Then, on those bare facts, you wouldn't know what they were doing. You have to have further facts in order to understand whether you are dealing with a wage hour and working condition question or whether you are dealing with a restraint of trade question. You simply could not answer it on those bare facts.
Byron R. White: But if -- but if -- but if -- but if a labor union agreed with the law of the employer unit that the employer unit -- no member of the employer unit will sell meat after six o'clock that --
Bernard Dunau: Because then --
Byron R. White: Because the unions there, is that the extra fact?
Bernard Dunau: Because then we get into the labor exemption, Your Honor. In this case, the second way into the case is via the labor exemption. We can assume in this case that the market operating hours provision is a restraint of trade. It's an undue restriction on commercial competition. You still cannot reach it if as this finding shows it was entered in by the union in itself interest free of abetment of a businessman's conspiracy. On those facts, it would make no difference whether you were dealing with a restraint of trade or whether you're dealing with the wage hour and working condition. And that is why on our view of our case, we have two strings to our bow; one, we are dealing with wages, hours, and working conditions under the National Labor Relations Act and therefore we are out of the Sherman Act all together.
Potter Stewart: Of course on that one, there is a fundamental dispute between the two parties this controversy your -- whether on the other side says there's a disclosing hour, it has nothing whatever to do with the hours or working conditions of the butchers.
Bernard Dunau: That was a great dispute in the District Court.
Potter Stewart: Well, it continues here as I read the brief.
Bernard Dunau: As you read the briefs, Your Honor, but so long as the District Court found the facts as they found them and those findings were undisturbed in the Court of Appeals, Jewel can argue all at once that the facts should be read differently. They come here armored not only by the clearly erroneous rule they come armored by the two court rule. If Jewel wants to argue in this Court that the fact should have been found differently by the District Court, it is welcome to that burden. We take the findings as the District Court made them undisturbed by the Court of Appeals.
Potter Stewart: Now, which findings said that?
Bernard Dunau: May I before -- I will come to that in just one moment but this does raise the third question in this case. We say it's wages hours, and working conditions. Jewel says it's a restraint of trade. We think that means that this question should have first been before the National Labor Relations Board as the body which the Congress has set off to decide whether a subject is or is not a mandatory bargaining subject. We think, therefore, that this complaint had no business in the District Court without prior recourse of the National Labor Relations Board. But now as to the finding of fact, I want to read to the Court the ultimate finding of fact of the District Court. That this appears on page 672 just above the -- probably on number 198. We have in this case two volumes of record and we're talking about Volume I pertaining to the testimony and the exhibits. The union's insistence on the retention of the marketing hour restriction was based upon its desire to protect its right not to work at night and to protect its work from being taken by others. Those facts and circumstances are inimical to plaintiff's theory that the unions insisted on the restriction as the tool of the employer group and at their behest. On the contrary, the evidence establish that the restriction was imposed after arms length bargaining including an overwhelming strike vote against night work, and was fashioned exclusively by the unions to serve their own interests, how long and what hours members shall work, what work they shall do, and what pay they shall receive. These are not objects which the antitrust laws prescribed. They are conditions of employment and as such are clearly within the labor exemption of the Sherman Act. This is the ultimate finding effect in our view. This finding having been undisturbed is dispositive of the claim that the unions on any theory have violated the antitrust laws. Now, what went into this finding of fact?
Potter Stewart: That -- that recital in the District Court's memorandum as it goes to the motivation of the union and I suppose when it talks about the union not working and either the employees --
Bernard Dunau: (Voice Overlap) men. Yes sir.
Potter Stewart: But if the fact is that this early closing hour or not has in fact no impact at all on the hours which these butchers worked would the original motivation be controlling or would the -- would the element of the fact be controlling?
Bernard Dunau: Well, the finding and the suppositious case are simply irreconcilable. When the District Court --
Potter Stewart: I mean as I understand in the -- but obviously before the days of any self service in order for a meat market to be open, there had to be a butcher there. And in the early days of self service, this was possibly also true as I understand that the claim release is made nowadays with the improved technology of self service in the supermarket it's not, as a matter of fact, necessary to have a butcher present in order to have a meat market open, a self service market open.
Bernard Dunau: As a matter of fact this issue was hardly -- hard -- litigated hard in the District Court because Jewel says it's a fact that you can operate a self service meat department without employees and we say nonsense you cannot operate a meat department service or self service without employees. And the finding of the District Court on that issue was in our favor. On page 672 of the record, talking about the same page, talking about the ostensible possibility of operating a self service meat department without employees. It meant this proposal that their work would be done with others unskilled in the trade since the evidence showed that in stores where meat is sold at night, it is impractical to operate without either butchers or other employees. Someone must arrange, replenish, and clean the counters and supply customer services. And then the District Court repeated that finding on page 675. Even in self service markets, meat -- oh that is -- night meat sales even in self service markets require as a matter of practical operation, the services of either butchers or other employees.
Potter Stewart: Your evidence of --
Byron R. White: The findings in other butchers and other employees are different but neither one of the two works.
Bernard Dunau: Yes sir, and that got back to the fundamental position of the District Court and our fundamental position. Our object is twofold. One, not to work at night and two, not to have our work be performed by anybody else, and that the marketing hour restriction was necessary to be sure that both were accomplished. It was no good not to work at night but to find that the retail clerks or the supervisors were doing our work.
Byron R. White: Based upon the assumption that this kind of work, the arranging of meat and replenishing the stock is butcher's work.
Bernard Dunau: It is butcher's work. There is a finding specifically on that subject.
Potter Stewart: And that is covered by the agreement too?
Bernard Dunau: It's covered in terms by the agreement and we covered it by testimony undisputed. And there is a finding of facts specifically that cleaning the counters, rearranging the stock, replenishing the stock is butcher's work. So when we are talking about loss of work to others, we are talking about that work which under the agreement is done by the employees we represent.
Potter Stewart: Right, and so if Jewel did do this as you say here, they'd be violating their collective bargaining agreement?
Bernard Dunau: Yes sir, they would be.
Potter Stewart: And you'd have a perfectly good remedy against them.
Bernard Dunau: And we would not have a perfectly good remedy against them Your Honor because we know that you cannot police these things. We know from the exception that is contained to the limitation of market operating hours, it pertains to fresh meat. Other meat department products may be sold after 6 P.M. And the agreement is that these other products will be stocked in the cases before 6 P.M. and will not be handled by any employees after 6 P.M. We know and the finding is that in fact invariably after 6 P.M. that meat is being restocked and those counters are being cleaned either by the manager, the assistant manager, or the grocery clerks. We had an instance of cheating in the very course of trial which we brought, induce evidence on and there are findings here that the -- one of the reasons the union fears self service operation extensively without employees that in fact employers cheat on the promise that they will not have -- that no one will do this work but butchers.
Potter Stewart: There was the evidence by operations over in Indiana.
Bernard Dunau: Yes sir.
William J. Brennan, Jr.: Does that show cheating as you call it?
Bernard Dunau: That is -- the evidence in Indiana is the evidence of cheating we uncovered here. On either Tuesday or Wednesday night, when they were supposed to be operating this meat department without employees, one of our people went into that store. There were two grocery clerks in the cooling room of the meat department. Our witness asked for a runt roast and the grocery clerks brought out two to ask him to make a selection. This is cheating. This is what happens in Indiana where supposedly you operate a meat department at night without employees. But furthermore, taking Indiana on Jewels' own representation, the record shows as clearly as anything can be shown that even in little Hammond, Gary area in Indiana which is what we are talking about, you always have a meat cutter on duty at least Thursday and Friday. You may have a meat cutter on duty other nights of the week depending on the volume of business. And the only time you do not have a meat cutter on duty is when business is light. So when business is brisk and the only time therefore that night operation makes any difference, you always have a meat cutter. Now, this is what Jewel's chief negotiator said in his deposition which he did not disclaim at the trial about the so-called operation in Indiana. He said in Lake County, Indiana, we are required to have a meat cutter on duty only on Thursdays and Fridays. We are usually open five nights a week. We usually have a meat cutter on duty Mondays and Tuesdays in addition to Thursdays and Fridays. Wednesday is a pretty light night and some of our markets will not have a meat cutter on duty on those nights. This was the information known to Jewels' chief negotiator. This was obviously the information on which he was acting when he was negotiating with the unions. And it is simply fictitious to assume that either Jewel's negotiators or anybody else were negotiating the subject of market operating hours on the artificial assumption that you could in truth operate a self service meat department without employees. In fact, that proposal and the only proposal that was ever made to that effect were made by Jewel in 1961 in the last minute of contract negotiations when the negotiations were breaking up. A serious proposal is not made in the last moment when negotiations were breaking up. No other proposal of that kind was made in 1957, 1959 or 1961. What we have here, therefore, is a question as to whether the man must work at night and whether their work will be taken over by others. Now, this goes back a long time. This goes back to November 1919 more than 45 years ago. In 1919, the meat departments in Chicago were operated 81 hours a week, seven days a week. The meat departments were operated from seven in the morning to seven at night, Monday through Friday. They were operated from seven in the morning to 10 at night on Saturday but they were operated from seven in the morning to one in the afternoon on Sunday. In November 1919, the union called a strike that was Local 546 which is now the biggest local and was then, I believe, the only local. They called a strike and the object of the strike was expressed in four words; more money, less hours. And what they wanted on less hours was one hour off in the morning, one hour off at night, and no Sunday hours. That strike lasted for eight days. They want it. At the end of the strike, marketing and working hours were in Chicago placed at 8 A.M. to 7 P.M. Monday through Saturday -- oh that is 8 A.M. to 7 P.M. Monday through Friday, 8 A.M. to 9 P.M. on Saturday and no Sunday hours. Year 1920 was the year at least so far as we were able to uncover files. This far back was the first written contract we could find. What was written in 1920 in the collective bargaining agreement pertaining to meat cutters in the Chicago area remains the kind of agreement we have now with the only difference being the hours which are presently limited. In 1920, this was the agreement, nine hours shall constitute the basic working day. Hours shall be 8 A.M. to 6 P.M. except in Saturdays and days preceding holidays beginning at 8 A.M. and quitting at 9 P.M. It is expressly understood that no customers will be served to come into the market after 6 P.M. and 9 P.M. on Saturdays and on days preceding the holiday. The first written agreement combine marketing hours and working hours that combination exists in every agreement in the Chicago area through the one that exists today. In 1937, the hours on Saturday were reduced from 9 P.M. to 7 P.M. In 1941, the hours on Saturday were reduced to 6 P.M. In 1945, they were reduced on Saturday to 3 P.M. In 1946, to 1 P.M. In 1947, the short day on Saturday was discontinued. It went back to 6 o'clock. It's been that way ever since. The agreements are explicit marketing hours and working hours stops at 6 o'clock. And the reason they stop at 6 o'clock, and the reason they were regulated in 1919 as a result of the strike is because the men do not want to work at night.
Potter Stewart: Of course, back in 1919 and indeed up until the advent of self service, as it's called, it was implicit in the economic -- in the facts of the situation that marketing hours and working hours were coterminous. As I understand it now, there is some provision in the agreement for working hours after 6 P.M. so long as the work is carried on behind locked doors.
Bernard Dunau: Yes sir, and this was in the agreement in 1920. In the agreement in 1920, it said this, overtime to be limited to one hour everyday and shall be performed behind locked doors at the rate of $1.50 per hour. Behind locked doors, meaning the market shall be closed was one of the safeguards which was in this agreement from the very beginning.
Earl Warren: (Inaudible)
Bernard Dunau: Yes sir.
Earl Warren: (Inaudible)
Bernard Dunau: No sir, I do not think that --
Earl Warren: (Inaudible)
Bernard Dunau: No sir. We read the findings, this is on 18A Your Honor.
Earl Warren: (Inaudible)
Bernard Dunau: 19A.
Earl Warren: (Inaudible)
Bernard Dunau: This 19A, Your Honor, is the first opinion on the interlocutory appeal prior to the trial.
Earl Warren: (Inaudible)
Bernard Dunau: They did say something upon which the Jewel relies to say that the Court of Appeals swept aside all the findings. And this is what the Court of Appeals said. This is at page 692 of the record, 692 to 693. That is the -- in the petition for the writ it would be -- it would be on page 5A of the petition for the writ. It says, “The evidence admitted by the District Court on remand is in the record now before us. It sustains the material allegations of the complaint. There are no factual disputes revealed by the evidence, no question as to the credibility of any witness on any issue which we consider has been raised -- which we consider relevant has been raised. It's the single line which Jewel picks out to show that all the findings of fact of the District Court evidence have been swept aside. We say that the key to that sentence is the word material allegations of the complaint. The Court of Appeals did not disturb a single finding. It rendered them irrelevant by its view of the law.”
Earl Warren: What part is it?
Bernard Dunau: Which part --
Earl Warren: (Inaudible)
Bernard Dunau: Effectuated on unreasonable restraint of trade. That goes to another subject, Your Honor. That goes to a question upon which the writ was denied. The question which we present on which the writ was denied namely whether assuming these were an agreement exclusively between businessmen, it would be an unreasonable restraint of trade. That does not go to the findings with which we are concerned. And in our view, what the Court of Appeals did was to undercut the findings by its view of the law not to disturb what the findings were. They did two things. One, they said, it doesn't matter that you are interested in not working at night. The time that a store shall be opened is to be determined by the merchant. You will work those hours so long as those are the hours that the merchant wants to keep the store open. That was the way it got rid of all the labor attributes of the limitation. And that got rid of the finding that there was no conspiracy by saying it doesn't matter that there's no conspiracy. It's enough that there is an agreement which was entered into as a result of joint negotiations.