Brief for Respondent in Opposition — McCrary v. Aladdin Radio Industries, Inc.

> ae Ue een E e a:

oP , . ] OMfice-Supreme Court, U.S.

oe FILED

rr 3 No.180 - (| -AUG 13 1959

pee oe: | JAMES R. BROWNING, Clerk f

: IN THE 7

Supreme Court of the ited States

cache TERM, 1959 a6

Dovetas McCrary, et al. _

~

Vv. F

AxappIn Rap1o Inpystries, Inc.

ee “and

Au&DpIN osc Inc.

On Petition for a Writ of Certiorari to the Court of Appeals et:

By ae. Ces commer nea icee ais at Nashville

BRIEF pow/urarcuindarts IN OPPOSITION |

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F ——- oe Ae Seon Sena on

eee “Dick BE, LaNspex eee

+ | WrutuaM Warten

ees 2 case: eal 1200 American Trust Bldg.

Nashville 3, Tennessee

Attorneys for Respondents

of Counsel: , ms

Waiter, Davis & LANSDEN| %

1200 American Trust Bldg.

Nashville 3, Tennessee _..

- Press or Byron S. ApaMs, WasHINGTON, D.C. -

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. INDEX : ; Bhd

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\Quiestions Presented ©... spececceccecsecseewets err 1

MI Fic clcd.n a Rice sas 00edasbcnna sheeaae op azn ae

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Argument ......... Pintecéssakesaeet coaes aa, Ae

—~. The Chancery” ‘Court Had Power to Punish’ the -

Violation. of Its“ Injunction Irrespective of How

- the Pre-Emption Question. Should Be Decided ; and

the Deeision to This Effect Is in Accord: With

Prior Tennesseé ER OTe eT Pe +f)

2. The National Labor Relations Act I id Not Pre-

_Empt the Field so as to Deprive the Chancery

Court.of Jurisdiction to Enfare «Ahe State Law of

C ommon Carriers -::.:..:25./....... PP rrere eae” ae

Conclusion be, Sere ey hv esbeeecetes peeeeee me |

i, _TABL od tt oe, 3

Amalgamated C lothing Workers v. Richman Bros. Ca: ;

UC ~ 511, 516 4 | RISEN RRO eae 7

“Amer ay Veteretions Musicians v. Stein, (U. CA. “

5.4) Ce a ee Ce ee te Coes 6

PR : Colebrook Guaranty Sa@nes Bank, (C.C.A

"2, 1937) 92 BP. 2d 62 Pie RR UE a Ve

Automobile Workers y. O’Brien, 339 US. i See 12 |

Bus Employees v. Wisconsin Board, 340 U.S. 383... 12

Capital nf ee Tne. v. Labor Board, 347 U.S. 501 ..... 17

Cohens irginia, 6 Wheat. 264, 399 ............... a)

Fox Filut Corp. v. Muller, 296 U.S. 207 ..0........ 9

. Galveston, H. & S. A., “Ry. - v. Wallace, 223 U. S.

Bedi ie ae ia ee are Coes sare cides Sore eS 13, 15

i ory. «Seamsters Union, 346, US, 485, 501°...... 9,12

G (neral Drivers v. American T obaceo Co., 348 U.S. 978 6

iiss v. Utah Labor Moard, 353 C.S..1, “maa aia 12

FEuae w. Phowtdin, SER Uh: BE no. on nig ccc akc decciccce 12

Humphrey's, Exeeutor v.U.S., 295 U.S. 602, 626 . .16, 17

International Assn. of Machinists v. Gonzales, "356

Vise wapeseass Re rrr overs Sibannee

ii - — “Thndex Coritinued |

. “2 erie Page

Minnesota v. National 1 Tea Co., 300 U. S. RPC NA

National Assofation for The Advancement of Colored

“Pe ‘aple vy. Alabama, 357 UWS. 449 . Miienheese eens se

Robb v. Connolly, got ys ree er me | kk

“San Diego Building Trades: Council v. Garmon, 359.

; tf “Ge RRC at ee, bivewiaers 12; 13, 15, 168

_ Shriver v. Woodbine’Savings Bank, 285 U.S. 467..... @15

‘Teamsters, C. H. & T. D.-v. Kerrigan [ron W orks, Ine. ag

ae yt rete - «3, 4, 6.16, 17

_ United ‘Automobile Workers v. Russell” 356 U.S, 634 15

"United Mine Workers v. Arkansas Oak Flooring Co.

ee Se I Mie teh Sah oa cee eus haba beckat cess 14

United States v. Mine Workers of. America, 330 U. S. |

ee cwisee Seg A PERU Ce Ge PA pO AE Ey

U. Ss. v, wel of New York, 296 U.S. 463, 479 0.05... sil.

Weber v. Anheuser-Busch, Ine., 348 U.S. 468, 481 ‘ao ee

W eidner vy. ‘Friedman, I. 26 Tenn. | Ae reer y PE Ae

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Po bod - — °

IN THE

Barone Court uf the ih States

Octo ye TERM, ie

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: No. 150

“< ry : ! ‘ ae ? ©

Dovcias McCrary, et al.

° Vy: : . | ‘.

_ ALADprN Rapio’ INDUSTRIES, INC.

and |

ALADDIN INpusrRiEs, INc.

e

On Petition for a Writ of Certiorari to the Court of Appeals of

Tennessee, _ Section, at — D

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_ BRIEF FOR RESPONDENTS IN OPPOSITION

QUESTION Ss PRESENTED

The + ‘qthestions presented”? as framed in the peti-

tion for certiorari are not, except in minor part, ques-

tions actirally presented on the record. There was no

s

thandatory injunction to compel truck drivers to-eross *

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ae

_

i

d picket line. No injunetion wis sought or oblained

eagaitist any liber union or any member thereof, and |

there was no allegation of collective activity, concerted

- action, or untair labor practice.. The bill seeking the

_injunetion raised no issue under Section 7 or Section -

8(h) (4), or any other provision of the National Labor

Relations Avt, as amended.’

The question ac tually presented is whether eniployees .

of common carrier truck dines may, with impunity,

violate a temporary injunetion issued by at _state

court requiring the carriers, ‘their offic CPs, agents,

_ employees ... and: or confederates.” to re ane eustom-

“ary servie? to a manufacturing plant, at whieh. a

strike is being conducted, The injunction did hot

compl them to remain at work. So long. as they aaa

mained at work, however, it was their duty, under the”

temporary injunction, as employees, of the éommen

carrier, to pick: up and deliver freight at the manu-

fueturing plant in question without -discrimination. |

The question is whether or not the tijune ‘tion Was Void.

The question may be divided as follows:

(1) On the assumption that, when a hearing eventu-

ally takes place? the temporary injunction should be

dissolved, and a@ permanent injunction refused on the

ground.that the National Labor Relations Act. has pre-

_empted, the field of common carrier law with respec tte |

servie® to plants at which there may be a picket line,

does it follow that the state court is powerlens to punish .

49 Stat. 452 (14 33) as amended ; 20 S. C., sections 1 51 et seq.

*The injunction suits hate remained.in statu quo, by agreement,

pending the disposition of the contempt prow ceedings. While there

are two suits, and two injune tions, the singular phraseology is used

in the brief for the sake of simplicity.

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* a viglation of the injynction while it remains in effect ?

And.in giving a negative answer to this. question, did

the Tennessee Court of Appeals depart from settled

Tennessee procedure so,as to deprive petitioners of

their rights.under the Fourteenth Amendment ?

-. (L) Is the assumption on which the former question

Was predicated a valid one— that is to say, has the

National Labor Relations Act actually pre-empted the

field Of common carrier law to that extent ?, .

It is believed that the- pre-emption question will not

be reached by the Court in this case because no matter

tow that question ‘Should be .decided, the temporary —

injunction was not ‘void and, under Tennessee law, it

could mot be violated. with impunity. If this is an

adequate non-féderal ground for the decision, the pre-.

emption issue becomes irrelevant: .

-". +. STATEMENT

By order entered at the October term, 1957, in No.

116 (355 U. S.8), a former petition for certiorari in

these cases was granted and the cases remanded “for

‘consideration in light of Teamsters, C. H. & PT. D. vy. -

Kerrigav Tron Works, Inc., 353 U. 8. 968." The ré-

@iand.was doubtless to enable the Tennessee Court of |

Appeal to clarify the basis for its devision, as in

Minnesota v. National Tea Co... 309 U. S: 551. This

consideration in the light of the Kerrigan case has

taken place and the Tennesste Court of Appeals has-

held that the Kerrigan ease is distinguishable on two 5

grounds and is inapplicable. In Ke rrigan the validity *

* The opinion on remand is copied in Appendix A to the petition

(Pet, 21-35) and correctly sets forth the facts.« The petition re-

peats inaccuracies in the earlier, petition, to which attention was

called in the **Memorandum for Respondents” in answer thereto,

No. 976;.@ctober Term ‘1956. :

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oof an injunetion against a-labor union was invelved,

based in piirt on allegations of unfair labor practice.

In the instant case there was no injunetion against a

labor union and there were no allegations of anfair

tabor practice. In Kerrigan they alidity of, a perma. . -

Jnent iejunetion was directly involved. Tn the instant

he

ease the Validity of the injunetion, which was a tempo- >

rary injunctions is not directly involved, but only

boHater ally. ‘The issue Ingres thy v: alidity of judg-

ments fer contempt Tmpesed. separately pon. SO

eighteen truck drivers and- upon a Toeal labor virion

and its pres ide net for ‘conduct desiened ‘to prevent

compli ince witht the temmorary iujution. The de-

ccision Of this 1 issue denends 2 “5 whether the tempo-

rary injunetion was void, as petitioners ¢ ‘Jaim, or valid

for at most merely -voeidable, and proof against cM.

Jateral attack) as respond nts clam. The sOhition

“of that question turns m: inky on Te NNessce equity law.

The. opinion of the Court.pf Appeals filed August 6,

1958 holds that the Chancellor had «jurisdiction to grant

n temporary pune tou, based on- the allegations of

the bill before him (which raised no ‘ssue of collective

activity, concerted “action or. unfair labor practice)

and to punish for viglation, irrespective of whether or

“not the Chancellor might later hold. on a further hear-

ing. that the National Labor Relations Act had pre--

empted the field -of comman carrier Taw as respects

service to plants at which there are pieket lines. The

Court of Appeals further held that the subject matter

of the snit Was not pre-empted by the federal act ane .

owas within the jurixdictian eff the Tennessee Chancery |

Court. For ath reasons the Court held shaggthe Ker-

rigan ease was inapplicable, and. re- weep he jude:

ments holding the petitioners in ¢ ‘onte mpt.

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The petitioners on August-16, 195 8 filed ‘a petition te.

rehear, contending that the Court of Appeals had ig- *

nored prio. Tennessee |; iw to the effect that aja injune-

: the is void if the court issine the Injunction is with.

ont “jurisdiction.” The Court of Appeals de ‘nied the

petition to rehear? st: iting that under Teme ‘ssee law —

the Ghancellor “had jurisdiction to determine the.

ISSUCs, including that of his own jurisdietiongand to

_ grant the te Mpo “ary in june tion to preserve the. status:

“quo pending such determinations, and to punish deti-

~ anee of it. fe contempt.” (Pet, 43 >,

9

9. ARGUMENT

Ms The Chancery Court Had Power to Punish the Violation of

‘Its Injunction Irrespective of How the Pre-Emption Ques-

‘tion Should. Be Decided; and the Decision to This Effect

is in Accord With Prior Tennessee Decisions. ;

| The Court of Appeals was correct in holding that

the Ch: aneellor had jurisdic ‘tion to issne the temporary

injunetion and to punish its violation IrLespeetive of

the -pre-emption question. Petitioners? argument i

lustrates the common’ fall: ley of equivoe ation or the

“ambiguous middle. Beeanse orders are void where

entered by a court without “jurisdictions” "Un one sonse

of the word, the argument is thet @ders entered bya @.

court without “jurisdiction. in ani senses of the word, = “3

are likewise void. 4 te 0? :

~«

“Surisdiction” ix. derived from. **juris’’ and.

*dico’—*] spe ak by the Jaw.’ Lack of jurisdic: |

tion’? is frequently said to consist either 1) in the

court's total want of power to act at all, or (2) lack of

pewer to act ina. particular ease heeause of the ab- (

Se ‘nice of conditions essential to exereising yur Isdiv ‘tion. a ‘

ee

Nor opinion: Is aio in rn B toy, the A scien Pet s-

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Forbearance by a.court from exercising its powers to

the fullest possible extent may.also be called ‘Tack .of

' jurisdiction,’’ as pointed out by Cireuit Judge. L.

Hand in Amey v. Colebrook. G@ waranty Savings Bank,

(C. CoA. 2, 1937) 92 F. 24.62. Whether or not a court

has “jurisdiction”® in a particular case may depend

upon the decision of intricate, novel, and disputed

questions of law and fact. An illustration is the juris-

diction of the United States district eourts in diversity

eases. See American Federation of Musicians v . Stein,

(C. C. A. 6, 1954) 213 F. 2d 679, where the. Murt of

Appeals-held that a District Court, sitting in Tennes-

see, had jurisdic tion to issue a temporary injunction

to preserve the status quo while determining w hethvr

or not diversity of citizenship existed, —a question

which. could be determined - only after <the taking

of evidenee. Similarly, in United States. v. Mine

e

Workers of America, 330 TL S. 258, the question

of jurisdiction depended upon the ‘construction of

the Norris-LaGuardia Act. .-The Court sheld that

even if the Act were applicable; the District Court

“had the power to issue a restraining | order for the

purpose of preserving existing conditions pending a

decision upon its ewn jurisdiction,” Having such

power, the District Court also had the power to punish

disobedience © of its’ order.

In. United States v: Mine Workers, the aunt andi-

‘ated that.a different result would follow **were the

question of jur isdiction frivolous and not substantial.’

(p: 293). It cannot be, suceessfully contended - in the.

instant case that the lack of jurisdiction: of the Chan-

cery Court was so well settled that any contention to

the es ntrary was frivolous’ and not substantial. At

the time the injunction was issued, the Kerrigan case

‘had not been decided. The per curiam decision in

General Drivers v. American Tobacco Co., 348 U.-S:

«

e

978, was rendered after the temporary injunction was

issued, and upon being brought to the attention of the

Chancellor, he Went so far as to suspend the Injune-

tion until he avas able to satistv himself whether this

decision deprived his court of Jurisdiction. All peti-

tions for contempt which-had reference to conduct dur:

ing the period the injunctidn Was suspended were dis-

‘missed. Upon full consideration of General Drivers

V. Ameri¢an Tobacco Co., the Chancellor was of the

opinion that it did not deprive him of jurisdiction, and

he announced that:-in the future the injunctions wouk

_

a

be strictly enforced. (Record. p. 108). ae

P ’ . ome ‘ 5 \ :

This is apparently the first case to come before this

Court in whieh the contention is made that the Na.”

tidnal Labor Relations, Act has deprived a state court

of Jurisdiction even though ne labor union is a party

_and no unfair labor practice is-alkeged. Ine Uytited

States v. Mine Workers, the Court stressed the point

that the applicability of the Norris-LaGuardia “Aet in

such a case “had-not previously received. judieial con-«

‘sideration.™ Hence -the problem was a’ substantial one,

The present problem is equally novel, The Court has

expressly recognized ‘the inadmissibility of the as-

~ sumption that ascertainment of pre-emption under the

Taft:Hartley Act is self-determining or ever “asy.”’

es A malgamated Clothing Workers v. Rich man Bros, Co.,

348 U, S..511, 516.

A temporary ‘injunction under ‘Tennessee law, as

well as unger general law, “without determining any

question ofvight,’’ merely “preserves matters: in statu

que.” (Gibson's Suits in Chanedry, 5th ed. section

S48), Since it is well setMed general law -that a-court

has jurisdiction ina doubtful case fo determine its'own

jurisdiction’ and to preseéve the statins quo pending »

further hearing, the petitioners in the instant case have

“4

é §

found it necessary to contend that, prior to the deci-

sion in the instant ease, Tennessee law on this sulffect

was peculiar and-different, and that a new ia has-7

been adopted\in mid-stream, bringing the cas@@#ithin

the-ambit of Matiohil Association for the Adivance-

ment of Colored Peaple v. Alabama, 357 U.S. 449. This

contention: was rejectéd_as unfounded by -theeCourt of

Appeals in its opinion denying the petition to rehear.

When general language-citéed by petitioners fgom opin-

ions in former Tennessee cases is eonsidered i in the light

of the facts in those cases, there is nd conflict or incon-

sistency, as the Court of ‘Appeals care filly explained.

As’ said by Chief Justice Marshall in Cohens v. Vir-

ginia, 6 Wheat. 264, 399; “It is a maxim, not to be =

disregarded, that general expressions, in every opinion,

are to be taken in connection. with the case . in. Ww hich

_—

those expressions are used. +t

_ In Weidner v. Friedman, 126 Tenn. 677, cited by the

‘Court, of, Appeals, but_ignored— in—the- petition, the --

Chancery Court was held to have been “without juris-

diction’ to enjoin the operation of ‘‘disqrderly

houses’’ at the suit of ae private person, where | there

was no allegation of special and peeuliar injuty to

the complainant, different in kind from tha? yufféred

by the general public. The Supreme Court’ of Tennes-

sce held that the abatement of stich a nhisance was for

the Criminal Court, not the Chancery Court, andac-

cordingly reversed the decree of the Chancellor ofi.the

merits for lack of jurisdiction, but at the same time _

sustained judgments for contempt.

The authority cited by the petitioneys, Gibson's Suits

in Chancery, 5th Ed. section 454, classifies void jindg-

ments and decrees as being those ‘*that- appear on the

face of the record itself to have heen rendered without

jurisdi¢tion of the parties or of the subject matter.

pe tition. the au

-until reversed Ww

| volving th

-

‘

(Pet. 16). Yn the instant case: re injune tion was

valid on its face, jand in the Janguage of the-author,

even if it was.voi able it was “proof against collate ral

attack.”? (Pet. 96) In Footnote-58 (not quoted in the -

dor cautions that w hile voidable judg-

nes miscalled **void,”’ they ‘are ‘valid

direct attack.’ |

t

It has BA recognized by this Court in- eases ine.

pre-emption doctrine that | the jurisdiction

of the ate court must be determined: from the plead-

i mor V. Teamsters Union, 346 U.S. 485. DOL:

Anheuser- ‘Busch, Ine., 348 UL S. 468, 481.

ments are someti

There ian heengin the instant ese no de fe ec from

settled principles, “Petitioners are without basis for

their contention that ander Tennessee 1): iw, prior to the

instagit decision, an order af the Court was necessarily

void if it were later held that. the Court w: as withont

~ jurisdic tion, although such ack-of ertsdiction did not’

appear on-the face of the record. Tf an injunetion is

void, ‘Thamay he violated with impynity. But) peti

tioners are — in the HP asse rtion that it has ever

heen the Taw. tn Taunessce that .a te wMiporary Myune-

tion is neeessarily void. Whenever the. Coirt Which

issued it lacked ‘jurisdiction in “anyosense of that

word, Petitioners are in the peenliar ‘position of

arguing that the Fennéssce appellate courts have not

“correctly decided a question of Tennessee Jaw,

The deefsion of the’ Te WNesses Court, of Appeals.

rests solidly on the adequate non-federal’ ‘ground that

at temporary injunetion which is net void must. be

Obeved while it is in force, and that under Tennessee

law (as well as under federal law) this i injunction was

not? void. \ecordingly the petition .for certiorari

* should be de nied without the Neeessity of conside ring

the question of pre-emption. Por Film C Orpen. Maller,

296 U.S. 207. ace

10

°2. The National Leber Relations Act Did Not Pre-Empt the

Field so as: to Deprive the Chancery Court of Jurisdiction

to Enforce the State Law of Common Carriers.

The pre-Pmption question may he stated as follows;

What should the decision of the Chane ery Court be if,

on final hearing, the petitioners herein, having inter-

vened or asked leave to intervene as defendants, should

move for @ disinissal of the complaint on the ground

that the Chancery ¢ ‘ourt, has no jurisdiction to enter-

‘taif the application for a permanent injunction ? If

the answer to the quéstion is pertinent to the deci ‘ision

of the ease now defore this Court, it is submitte “d that.

the hypothetical motion to dismiss the. complaint on.

this ground should, be denied.

Petitioners seen te argire, ii Offect, ‘that the « common

carrier defendants in the ¢ Chancery ‘ourt, proceeding 7

are at liberty, through the device of employing truck

drivers who are members of a labor: union, and of

agreeing with the labor union ‘that the truck’ drivers

need net cross picket lines, te nullify the state Taw

applicable ‘to. common. earriers, which requires ‘hon-

diseriminatory service. It is submitted that the Na-

tional Labor Relations Act does not .so provide and

should not be se conustraed. But a decision on that —

ixsne would ‘be: within the jurisdictional competence —

of the Chancery Court. if the question were properly .

raixed. It would not be incumbent on that Court to

(Uist smiss the case for want oof jurisdiction merely -he-

cause the question is raised; The Tennessee Chancery

Court. has jurisdiction te construc federal as well as

ow hether the permanent injunction should issue, “and if so, how

‘it should be framed so as to protect privileges of employees, are

questions which-do not arise here. Until a permanent injunction is

issued. or the bill dismissed, there will be no final judgme nt to be

reviewed.

To

state law, and to resolve conflicts between them. Robb:

Vv. Connolly, 11 U.S..624, 687; UL Sev. Bank of New

. York, 296 U.S. 463, 479. : ee on

Petitioners’ argunient rutis, however, that although,

in general, a state court whax jurisdiction to Uecide

matters of federal law, this is not trie With respect to

the National Labor Relations Act. Fhe argument

seems to run thaty.on the final hearing of the case

- faets and circumstances: might conceivably he proved

» whieh would be rélevant if “ari iSstre under Section 7

or Section & of the Aet were. present. The argument

implies that even thongh the pleadings now contain ne

allegations of stich facts! or vireumstances,. the Possi-

bility of later amendment iK sufficient to deprive the

court of jurisdiction under recent decisions of” this

Court. - aa ae 4 eee |

One complete answer. te the argument is that given

hy the Court of Appeals (Pet. 30) where, after point-

ing out that the petitioners stated, both in their an -

swers ‘and on the witness stand, that the truck drivers

had acted individirally and not in concert, it is sad:

“Since the acts of each of the individug] appel-

lants ‘in defiance of the temporary injunetion were

separate and individual acts, and not ‘concerted

activity’, we understand they could: not be a teon-

certed activity’ within the protection of sec. T-of 's

the federal Act. .N. LZ. Ro B. vy. Hlinois' Bell Tel,

Co. (7 CoC. AD), 189 Fed. 2d 124, 127-129. Nor :

* eould sueh acts of these individuals, unconnected

with any union, be’ a union unfair labor practice

under see, 8(b) (4) of that Act, which by its terms

applies only to a ‘labor organization or its

agents’.”’ | es

“—

But even.if the petitioners were free as Interveners

to assert that they engaged in concerted action, and to”

re

invoki the protection of Section 7, the Chancery Court

would not be deprived of jurisdiction. The ease in-

volves the duties of common carriers, and the possi-

bility that an ove rlap from the field of labor Taw might

*oceur at a later stage would het deprive the court of

jurisdiction te render a decision. Thi becomes elear

— when conside ‘ratign is given to the bases on which Taft--

~ Hartley pre-emption rests... There are two sueh bases,

each separate and distinct from the other:

- . (1) Inthe field of substantive law. Congress has pre -

cmpted certain gireas of. regulation with respect to

siesta relations, thereby exe lading the en-

forcement ” state laws in the same areas. Automobile

Worke rs \ OBrien, 339 CLS. ‘$54: Bus Employ Ck Ve

. Wisconsin Board, 340 U: S..383; Hill vy. Florida, 325°

US. 5388; Weber v. Anheuser-Busch, Ine, supra, and

cases there cited. aa ok See

(2) Congress has also provided the exelusive reme-

dies for the enforeemant by the aggrieved party of the

He e ge by the Act. Garner v. Toamsters Union,

%

—- US. 485.) Even if the Board-refuses jurisdiction —-

an Sine se selnaiiie implication of exelusiveness,” is found

in the pravise te Section 10(a), added to the Act in-

1947, whereby the Board is authorized te cede juris-

diction over the prevention of an unfair labor practice

te a-stete ageney. under — conditions. Guss

Utah Labor Board, 353.U. 8.1, 10.. It follows that a

~ state ageney cannot obtain Sorlidiction over the-pre-

vention of an. unfair labor. practice affecting inter- ;—

state commerce ‘except by cession of jurisdiction, and

-eamnot award damages 6n account of an unfair labor

-practice. San Diego Building Trades Council v. Gar-—

mon, 359 ULUS, 236.

In the instant case we are concerned only with the -

~~ question of remedy. | Neither in the proviso of Section

10(a) nor in any other provision of the Act is there a,

remedy provided against discrimination by common

carriers. Henee the ‘argument that statutory remedies

are exclusive is beside the point. Although petitioners

cite and rely upon San Diego Building Trades Council

V. Garmon, supra, the de-ision does not Support their

argument. ‘There the California substantive law was

inapplicable because interstate commerce was affected,

and because the federal- Act had pre-empted the field.

But this fact alone did not oust the California court of

jurisdiction to decide Whether an unfair labor practice

under federal law had been comnitted. Jurisdiction

‘of the state court was found to have been withdrawn,

not because Congress had pre-empted the field of unfair

—_

labor praetices. affecting interstate commerce, but be-

cause the federal Act had also expressly ‘provided ,the

remedy to be pursued by the aggrieved party. —

The applicable prinfiple Was stated and applied in

Galveston, Hod: S, A, Ry. Co. vy. Wallace, 223 U.S. 481,

where it was‘ contended that a state court hnd no juris-

’ diction to enforce a right of action arising under the

Carmack Amendment to the Interstate Commerce Act.

[Iu denying this contention, the Court said (p. 490): |

**... Where the statute creating the right pro-

vides an exelusive remedy, to be enforeed in a par-

_ ticular way, or before a special tribunal, the ag-.

grieved party will be left to the remed¥ given by

the statute which created the right. But jurisdie-.

tion is not defeated by. implication. And, consid-

ering the relation between ‘the Federal and the .

state Government, there is no presumption that

Congress intended to prevent state courts from

exercising the general jurisdiction already _pos- 7

- 14 " ‘

P 2 a . ‘ ? ra

sessed by them, and under which they Thad: the

..power to: hear and determine causes of action

e created by.Federal statute. Robb v. Connolly, 41

U.S. 624, 637.” ee ee Sas Seana ae

~~

In the inatfint « case the oP are not sec king

to enforve a right created by federal statute, They ~

‘seek merely to enforce the gene pent respecting the

duties of common carriers. -Apparently recognizing .

- the weakness of theif position, the pe tifioners, in their

former petition for certiorari, asserted as one of thie.

questions invoived (and in this petition they’say’that~ ,

it is still involved, although’ no supporting argument | -

is presented) that the Interstate € ‘ommerce Act® had

pre-empted the field.so as to deprive’ the Chancery

Court: of jurisdiction. ~ “But Section 22-of that Act——

expressly disclaims an intent in any w ay to ‘‘abridge

or alter the remedies now existing at common law or

by statute.””> Congress: having been thus at pains to

‘remove any question. as to the jurisdiction of. state

courts to enferce the duties of ‘common carriers, ‘it.

would be?an anomaly indeed. if it intended to deprive

them of that same jnrisdiction througti the enactment

. of legislation dealing not with carriers but- with an

entirely. different subject matter.

Petitioners pan (Pet. 13, Footnote 17) that the

decision below. is contrary to United Mine’ Workers’ ». |

vy. Arkansas Oak Flooring Co., 351 U. 8. 62, 75. In.

-that case a union, which had not filed the data-or — -

affidavits required by Section 9 of the Act, picketed

the premises; of the employ er to obtain recognition,

and the employ er obtained an injunction in the state.

court, not on the theory of unfair labor practice, but:

on the theory that, recognition. of a non- complying a

. - ae

8 24 Stat. 379 (1887) as amended: 49 U. S. C. section 1, et seq.

-

Sf

3° >

“4

tia oe “s ‘ ee a

pire nee ae eee

eo

“union “Would be-illégal and that picketing to secure

. . ee ae LPs ‘

it, therefore, was subject to restraint by a’ state. court.”

(351E.-S.68).— The decision of thesSupreme Court«

of Louisiana sustaining. a permanent injunction was

‘reversed by this Court on the ground that, as a matter.

of substastive nw, the state court should have sus-

'* tained the union’s defense that, under Section 7. ef the

Act, the picketing was-a protected activity. This

oy e rey ° - . ° e-

Court assumed without ‘question’ that the ‘state court

had jurisdiction to decide the case on its merits.

In each of the‘other cases relied upon by petitioners, |

the moving party alleged an ynfair. labor practice. On.

the other hand, in / “ternational Assn. of Machinists *..

Gonzales, 356 U.S. 617, the gravamen of the action

was the Hegat expmiston ofthe plaintiff from member-

ship in-a union in violation ‘of his rights under the

union consfitttion and by-laws. No cha rge..of unfair

labor p ‘actice appeared “in the petition by which the”

state court’s juri diction was invoked. ‘The ‘Court

_ held that. thé power of the state court. to order rein-

statement in the amion and to award damages for |

breach of contract was not precluded by the fact that °

the union's conduct might also involve an unfair labor -’

practice.” ~In the San Diego case the Court referred ‘to

‘Cronzales as involving the power of-a state to regulate: .

‘where the activity regulated was a merely peripheral

~coneern of the Labor Management Relations Act.”’.

_—_—_

7 The Court pointed out that although ‘the Board might poss

Ssibly have been empowered. to award back pay, in no event could :

it mulet in damages for mental or physical suffering.”’ (356 US.

621). Cf. Shriver Vv. WoodbineNaings Bank, 285°U. S. 467,-héld,

ing that the inadequacy of a Statutory remedy is itself persuasive

that it was not intended to be_exclusive, where: the Statute does

not State that it is exclusive. Neither this, case nor Galveston °

Hod 8. AoRy. Co. v. Wallace, supra, has been-cited by the Court.

in any of the Taft-Hartley pre-emption decisions. te

ware aes Seas ¢

‘

“Te “6!

The same characterization is fitting here. The duties

wr comiion éarriers are, at most, a peripheral con-

cern of that , * Jeo We

In’ nite d pened W orkers Vv. Russell, 356 us

634, this Court upheld the power of an Alabama court |

tu award damages to a non-iimion employee for ma-

“‘Ticious interference by the union w ith his lawful ocen-

pation by preventing him from entering the plant

where he was employed, notwithstanding the fact that

the plaintiff Alleged -violation of Seetion 8(b) (1) (A)

of the federal Act. In the Sun Diego case this deci-

sion was explained on the basis that ‘the regulated

conduct touched. interests so deeply rooted in local

feeling-and responsibility that; in the absence of com-

em pelling— rongressional direetion, we-cettht-not—infer——

that Congress had deprived the States of the power to

j

-

act.” ‘

e : .

In: this: country -there is no more deeply rooted

interest than access to common-carriage. To repeat

~ what was said in our re ply to the former petitio® for

certiorari inthis ease: ‘In an economy established

mpon the land; access to the highw ay came to be a right

of first importane e. If aman own® a tract of real

property completely surrounded by ‘holdings of others

the common law gave his an easement which secured

‘to him aecess to and egress from his own property..

~ Tn an economy based npon commerce, a person, natural

or corporate, must have aecess to common carriage

if he-is te carry, on... From the days when the term

first entered the language. it has heensa principle of

the law that common carrfage shall be dvailable to .-

all free ‘fram dise rimination, in servie e and in

*

* . s ’

charges .. .. ‘

: Except for such general expressions as “the ex-.

.

elusiye primary competenee-of the Bbard,”’ there. is

ry ;

; . 1D one cas “ore d . .

17 :

, ‘ « sn

. nothing in the San Diego opinion Which gives the

slightest support to the. theory of, petitioners that.

a. state court, which has rightfully assumed | juris-

diction, on the basis of the ‘original * pleadings, ~ of

a case involving solely the duties of common corriers?

must segs proceed with the case for lack of juris-_

| - diction tan When-a question of labor law is subse-

~ quently injected, or because of the passibility that such

a question might be injected. There is no ‘compelling

* g@igressional direction” fu? such an extension of im-

* federal pre-emption—a_ branch of: the law in

Whith, perhaps more than in any other, a frequent re-

currence to fundamental principles is essefitial. If ex-

pressions .** beyond -the point involved?" in the opinion

.te the decision of another (the approach of the present =

application ‘of: the supremacy clause,” to use the -lan-

‘guage of a distinguished scholar in the field.” might -

eventually result. . wa

—

ares : CONCLUSION _.

_ The earlier petition for certiorari. in this case was

‘granted beeause of surface similarities hetween this

ease and the Kerrigan case. The eareftlly reasoned

opinion of Judge Felts, speaking for’ the Tennessee

Court of Appeals on the remand, has pointed out that

there are also essential differences, His opinign in

4

eT eee . ;

* Humphrey's Executor ve U. S., 295 7. S. 602, 626.

* Bernard D. Meltzer, “The Supreme Court, Congress and State

Jurisdiction over Labor* Relations." 59 Col. L.. Rev. 6, 24a The

article points out (pp. 16-25) -the inappropriateness, of a concept

of “primary jurisdiction’ in the labor-management area. Such a

voncept would be impossible to apply in a case such as the present |

one, where the procedure of Capital Sérviec, Ine. y. Labor Board, -

347. U.S. 501, could not be followed for lack of statutory authority.

ae = ‘s

a £6

-

7

e

1S

response to the petition to rehear has cle: rly demon-

strated that under Tennessee law, as welt as under fed-°

eral law, attemporary injunction may or may not be

void where the Court had no **jurisdiction’’ over the -

subject matter of the case, depending upon the plead-

ings and circumstauces.of the @ase and upon the sense |

in which jurisdiction” is used. ‘The Covtt has held

that-the temporary injunction in this case was not void,

and could not be violated with impunity, irrespective

of whether or not the Court corregtly applied the pre-

emption doctrine. The Court has given its reasous

why theNational Labor Re lations Act leay es the Ten-

— nessee courts free to decide the main case on its merits,

after disposing of the anéill: ry y_ proceedings her re in-

volved. It is submitted that these opinins correctly

-state. the law, and that. the pe tition for certiorari

should be denied. :

Respee tfully submitted,

Dick L. LaNspEN

WILLIAM WALLER

1280 American Trust Bldg. @

Nashville 3, Tennessee

‘Attorneys for Respondents

.

Of Counsel:

Water, Davis & LANSDEN

1200 American Trust Bldg...

‘ Nashville 3, Tennessee -