# Brief for Respondent in Opposition — McCrary v. Aladdin Radio Industries, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1128%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent in Opposition - **Published:** January 1, 1959 - **Citation:** 361 U.S. 865 ## Text > 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 | + 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. - os 87. ; : a f . metl ad , . INDEX : ; Bhd ; ~ : ee Sane) ; Page \Quiestions Presented ©... spececceccecsecseewets err 1 MI Fic clcd.n a Rice sas 00edasbcnna sheeaae op azn ae . he “ fs. = 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 - ° f . ° - : . sie ne q ne os 4 & | © \ : % ° A 2. i \ ” *\ \. ° 2 Be . Zz a © — Po bod - — ° IN THE Barone Court uf the ih States Octo ye TERM, ie @ . : No. 150 “ _ 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 * e° 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. 4 “ e |. oN . J - * 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. : s meee oot ag, 7 gies i. @ \ 4 4. ‘ $ * 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. P - /f cP 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- Po « Py . - Y wv 6 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 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 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1128%3A4. Public record. Not legal advice.