# Motion to Dismiss or Affirm — Alaska v. Operating Engineers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1223%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1969 - **Citation:** 393 U.S. 405 ## Text Ort ; | SA. ss No. Supreme Court of the United States: ere ee ee STATE OF ALASKA - and WALTER = [licken. Governor of the State of Alaska, G. Kenxr Epwanps, Attorney General of the oe of Alaska, Tuomas J. Moore, Commissioner of Labor of the State of Alaska, Leo A. Pritiips, ALerep M. Warre and WittiAM Jones, members of International UCiion of Operating Engineers, Local 302, Appellants, Vs. INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, IxvernatrionaL UNION OF OPERATING EnGixernrs, Locan 302, WinLiam 'TYREE, CLARK Wricutr, Doxaty E. Conxern, AnuN XX. DECHANEY, | and National Lapor Renarions Boar, | Appellees. APPEAL FROM THE Unirep States Districr Cocrr FOR THE District oF ALASKA, Consolidated Cases Nos. — J-18-67 and. J-19-67, Reported in 287 F.Supp. 589 (D. Alaska, 1968 ) MOTIONS TO DISMISS AND OR AFFIRM z J. DUANE VANCE . of Vanck, Davies, Roperts «. Berris 1411 Fourth Avenue Building, Rm. °815 Seattle, Washington 98101 | Rosert BoocHEVER 4 _of FAULKNER, BANFIELD, BooCHEVER & DooGan 31 Franklin Street, Suite 201 Juneau, Alaska 99801 Attorneys for all Appellees eree pt the ad *. bien Supreme Court of the United. States Srare or’ ALASKA and WaALterR J. HickeL, Governor of the State of Alaska, G. Kent Epwarps, Attorney General of the State of Alaska, Tuomas J. Moore, Commissioner of Labor of the State of Alaska, Leo A. Puruips, ALFRED M. WuiIre and WILLIAM JONES, members of International Union of Operating Engineers, Local 302, Appellants, vs. . INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, INTERNATIONAL UNION OF OPERATING ENGINEERS, LocaL 302, WitLIAM TYREE, CLARK Wricut, Donatp E. Conner, Artin A. DeCHANEY, - and NatTionaL LABorR RELATIONS Boarb, Appellees. APPEAL FROM THE UNITED States District Court FOR THE DISTRICT OF ALASKA, Consolidated Cases Nos. — J-18-67 and J-19-67, Reported in 287 F.Supp. 589 (D. Alaska, 1968 ) MOTIONS TO DISMISS AND/OR AFFIRM J. DUANE VANCE - of Vance, Davies, Roperts « Bertis 1411 Fourth Avenue Building, Rm. 815 Seattle, Washington 98101 : RoBeRT BooCHEVER of FAULKNER, BANFIELD, BOOCHEVER & Dooaan 311 Franklin Street, Suite 201 . Juneau, Alaska 99801 ; Attorneys for all Appellees except the National Labor Relations Board THE ARGUS PRESS en ea SEATTLE, WASHINGTON ee INDEX ding itcen crcecreendiacennaaiines II Statement in Support of Motion to Affirm ...... III Motion to Dismiss as to Appellants Leo A. Phillips, Alfred M. White and : RR II neni teerienrintnminresenitcbeninninces on IV Statement in Support of Motion to Dismiss as to Appellants Leo A. Phillips, Alfred M. ‘White and William Jones ...................: . Re 13. Se RNR IS a TONE ERC Ise co CE MER TABLE OF CASES Brotherhood of Railroad Trainmen vs. Baltimore a O. BR, Caz, Fai Oi GUD we GG oases. Brown vs. Anderson, for <0 SS en ioe DeVeau us. Bratsted, 363 US 144 ..... ee eeeenee Ford Motor Company vs: Huffman, 345 US 330... General Electric Company vs — _ il (CA5 1961) 294 Fed. (49) GO een . 12 Hill vs. Florida, 325 US 538 chen esd ated 6, 8, 9, 15 Humphrey vs. Moore, 375 | Reinet 11 Ironworkers’ Union vs. Perko, 373 US 701 ......... ay | Local 24, International Bro. of Teamsters — OO, CHEST, Te SIP TI hecceteehecaicictisndivctnteasenceenonese 2, 10 Missouri-Kansas Pipeline Co. vs. United States of America, 312 US 502 ............ A cline 13 Mullaney vs. Anderson, 342 US 415 —000000 2... 10 Nash vs. Florida Industrial Insurance Commission, 389 US 239 .....222.--.-cccecscrcscsecceesesneeseees 9 Nucsse vs. Camp, (CADC 1967) 385 F.2d 694 .... 14 i baat Ca et MALE ALISO ALLER EG RAMA as Se BMS BS 0 WA ic LL PAI AED CB PAD Oe Oo Soa Ns CARDED DA 5 a ASS ntel a reeretanatan 4 MEd STN ea Raat AS lt Eso wanede ce iv TABLE OF CASES : | Page Pan Am Airways vs. California Division | Labor Law, 203 F Supp 324 ..00.0.. ec Plumbers’ Union vs. Borden, 373 | OF I Sos csicclecitietpieomaedeapntamnprnh tiles 2, 10, 11, 15 Textile Workers’ Union of America vs Allendale Co., (CADC 1955). 226 F.2d 766 ................... 13, 14 ‘United Steelworkers vs. Warrior & G. Nav. Co., | I Oe eee eetinesseanarsiimnnteinintnanonnsiseas 11 Vaca vs. Sipes, 386 US 171 ...........0......... ee 11, 12 OTHER AUTHORITIES © Labor-Management. Relations Act of 1947, as amended, (29 USC 151 ff). ......0.0000.0s. 3 Subsection (4) of Section (2) of the Act Ca Re WU. I rcs bcscerdstuipelicoidegaceisibslansaniiconiiend woeee 4 a | Pen ee Te ee Eee te: eee . 4 Section (9) (a) of the Act (29 USC see. 159) .... 4 Supreme Court of the United States STATE OF ALASKA and . Watter J. Hickent, Governor of the State of Alaska, G. Kent Epwarps, Attorney General of the State of Alaska, THomas J. Moore, Commis- sioner of Labor of the State of Alaska, Leo A. PHILLIPS, ALFRED: M. WHiItE and WILLIAM JONES, members of International Union of Operating Engineers, Local 302, - Appellants, VS. INTERNATIONAL UNION OF OPERATING EnGINEERS, AF L-C1O, INTERNATIONAL UNION OF OPERATING ENGINEERS, Lo- caL 302, Wi1sdmM ‘TrreE, CLARK WricHt, DonaLtp E. CoNNER, ARLIN, |™ UA. DECHANEY, and NatTionaL Lasor RELATIONS Boarb, A ppellees. APPEAL FROM THE UNITED States District Court FOR THE DIsTRICT OF ALASKA, Consolidated Cases Nos. — J-18-67 and J-19-67, Reported in 287 F.Supp. 589 (D. Alaska, 1968) MOTIONS TO DISMISS AND/OR AFFIRM q MOTION TO AFFIRM All appellees, except the National Labor Relations © 2 a my Board, move to affirm the judgment below pursuanit to Rule 16 on the ground that it is manifest. that the questions on which the decision of the cause de- pends are so unsubgtantial as not to need further argument. ; ss II STATEMENT IN SUPPORT OF MOTION TO AFFIRM The Three J udge Court below stated in part: ‘Since the question is so clearly free of doubt ... [further litigation] would have served no use- ful purpose.’’ (App. to Jur. St. p. 16) The decision below was clearly compelled by Hill vs. Florida, 325 US 538; Plumbers’ Union vs. Borden, - 373 US 690; and Local 24, International Bro. of Teamsters vs. Oliver, 358 US 283. Other cases cited by the Court below or herein lend interpretive value to the decisions in those three cases, or substantiate their continuing vitality, but those three cases, appear conclusive of the issues in- volved in this ease. For brevity, the International Union of Operat- ing Engineers will hereinafter be referred to as the International, whereas, the International Union of Operating Engineers, Local 302 will be referred to as Local 302. Local 302, wane ‘main office is in Seattle, Wash- ington maintains. offices in Juneau, Anchorage and Fairbanks in .Alaska and Wenatchee, Yakima and Mt. Vernon in Washington. In other areas it works © through the nearest Building Trades Council (Doce. No. 7. Vol. I). -“ 3 Prior to 1967, Local 302 had, pursuant to elections duly held, been certified by the National Labor Re- lations Board as the collective bargaining represen- tative forémployees of more than sixty employers doing business’ in the State of Alaska, including, as one em- ployer, the Alaska Chapter of the Associated General Contractors of America which was comprised of dif- ‘ferent individual contractors who, at that time, numbered in excess of may members (Doe. No. 7, Vol. I). In 1967 the legislature of the State of Alaska en- acted a law, set forth as Appendix ‘‘D”’ of the Jurisdictional Statement, which made it a crime, with a fine of not less than $1000 nor more than $10,000 for a ‘*. . . national or international labor organiza: tion having 100° or more members in good standing who reside or work in Alaska . , .”’ not to have duly chartered locals in the state. (Emphasis supplied) The International admittedly did not have any sep- arately chartered locals in Alaska. At this point, of course, Local 302 could not con- tinue to carry out its duties as certified collective _ bargaining agent, as those duties are described and defined by, the Labor-Management Relations Act of 1947, as amended, (29 USC 151 ff) without sub- . jecting its International to criminal prosecution. There is nothing in the Labor- Management Relations ~ Act of 1947, as amendéd, (29 USC 151 ff) which would have prevented any group of Alaskans from forming their own union and having participated in the sixty some elections which were held upon the petitions of Local 302. Nor is there anything in the Act that would even now prevent the filing of peti- tions by such aise ae at appropriate times. Maite: (4) of Section (2) of the Act (29 USC sec. 152) reads as follows: ‘The term ‘representatives’ includes any. indi- vidual or labor organization. a Subsection (5) of the same section. reads as follows: ‘*The term ‘labor organization’ means ° any organization of any kind, or any agency or em- ployee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, _ _ Wages, rates of pay, hours employment or con- ditions of work.”’ Section (9) (a) of the Act (29° USC see. 159) reads in part as follows: ‘*Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes - of collective bargaining ... ”’ (Eniphasis sup- plied ) : | The effect and meaning of the 1967 Statute of Alaska was that the employees of an appropriate unit could not exercise the rights guaranteed under Section 9.to select a collective bargaining represent- ative, as that term is defined in the above quoted sec- _ tions, if that representative happened to be affiliated with an international union which did not have a chartered local in the state without the threat of criminal sanctions being imposed. 3) The State filed several criminal actions against the Intérnational, Local 302 and its representatives and agents (Exs E & F to Dac. No. 1, Vol. 1). Also a civil action was commenced by the State in the Sup- erior Court for the: State of Alaska’ bottomed on the ' statute seeking various forms of injunctive relief . (Ex G to. Doe. No. 1, Vol. I). Certain regulations having. been promugulated by the State to implement the statute in the meantime’ | (Ex A to Doc. Ng. 1, Vol. I & Ex D to Doe. No. 71, Vol. III) the Ammociated ° General Contractors of Alaska, with whom Local 302 had a contract, served ‘notice that they declined to comply with the contract until determination of the. question of the validity of Bs Alaska statute (Ex E to. Doe. 1, Vol. III). bide two actions were commenced, one J-18-67, being brought in the name of several individual members of Local 302 and Local 302 itself. The li- ternational intervened as a party plaintiff in that action (Doc. No. 41, Vol. I). This action was insti- tuted against the various officials of the State of Alaska charged with the enforcement of the statute and sought to declare the statute unconstitutional and enjoin a The second sim J-19-67, was brought by Local 302 against the Alaska Chapter of Associated General Contractors of America, Inc.-seeking specific per- formance of its contract (Doc. No. 1, Vol. III). The - State of Alaska intervened in that case as a defen- dant because the issues framed in that case likewise centered around the constitutionality of the Alaska statute. Loeal 302 then likewise praved for relief against the Intervenor State of Alaska (Doc. No. 15, . 4 hte tion PBI ae in ic a EASA Wi el Oe ihe Ne Hb BSGaa Td [tlhe Fe: . DR Sp ahd SB epi aie RIE -k x ae Hee a jo 64a Vol. III). Plaintiffs asserted .several grounds of unconsti- tutionality which are set forth in the opinion of the Court below (See page 9, app. Jur. St.) ‘The following language from this Court’s decision in Hill vs. ¥lorida, 325 US 538, effectively demon- strates the inv alidity of the Alaska statute: ‘“T1] It is apparent that the Florida statute _ has been so construed and applied that the union and: its selected representative are prohibited from functioning as collective bargaining agents, or in any other capacity, except upon conditions fixed by, Florida. The declared purpose of the Wagner Act, as shown in its first section, is to encourage collective bargaining, and to pro- tect the ‘‘full freedom’’ of workers in the selec- tion of bargaining re}yresentatives of their own choice. To this end Cohigtes made it illegal for an employer to interfere with, restrain or coerce employees in selecting their representatives. Con- gress attached no conditions whatsoever to their freedom of choice in this respect. Their own best we judgment, not that of someone else, was to be. their guide. ‘Full freedom’ to choose an agent means freedom to pass upon that agent’s quali- fications. (emphasis supplied) ‘Section 4 of the Florida: act circumscribes . the ‘full freedom’ of choice which Congress said employees should possess. It does this by re-. quiring a ‘business agent’ to prove to the satis- - faction of a Florida Board that he measures up to standards set by the State of Florida as one who, among: ether things, performs the exact . funetion of a collective bargaining representa- tive. To the. extent that Section 4 limits a -union’s choice of such an ‘agent’ or bargaining repre- sentative, it substitutes Florida’s judgment for ana ast as ee eer oe ee ae Sidi i the workers’ judgment. ‘*Thus, the ‘full freedom’ of. employees in col-, : ’ lective bargaining which Congress envisioned as . essential to protect’ the free flow. of commerce among the states would be, by the Florida statute, shrunk to a greatly limited freedom. No elabo- ration seems reqtired to demonstrate that Sec- - tion 4 as applied here ‘‘stands as an obstacle to the accomplishment and execution of the full pur- poses and, objectives of Congress.’? Hines v. Davidowitz, 312. U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581; Cloverleaf Butter Co. v. Patterson, 315 US. 148 62 S.Ct. 491, 86 L.Ed. 754; Napier v.- Atlantic, Coast Line R. Co., 272 U. S. 605, 47 S.Ct. 207, 71 L.Ed. 432. It is not amiss, however, to call attention to the fact that operation of this very section’ has already_interfered with the collective bargaining process. An employer be- fore the Labor Board defended its refusal to bargain with a duly selected representative of | workers on the ground that the representative had not secured a Florida license as a business agent. In the Matter of Eppinger & Russell Co., et al., 56 N.L.R.B. 2259. The Board properly re- jected the employer’s contention, holding that Congress did not intend to subject the ‘full free- dom’ ‘of employees to the eroding process of ‘varied and perhaps eonfileting provisions of state enactments.’ Cf. N.L.R.B. v. Hearst Publi- cations, Ine., 322 US. 111, 64 S.Ct. 851, 88 L.Ed. 1170. ‘*Sinece the Labor Board las held that an em- ployer must bargain with properly selected union agent despite his failure to secure a Florida license, it is argued that the state law does not interfere with the collective bargaining process. But, here, this agent has been enjoined, and: if the Florida law is valid he could be found guilty of a contempt for doing that.which the act of Congrgss permits him to do. Furthermore, he a, Wri bs) eae t CRE ANU ROOR U LLCRM ENG. 8 wre LS “ 8 pee under Section 14 of the state law, be con- Nicted of a misdemeanor and subjected to fine, and imprisonment. The collective bargaining which Congress has authorized contemplates two -parties free to bargain, and cannot thus be frus- trated by state legislation. We hold that Section © 4 of the Florida Act is repugnant to the National Labor Relations’ Act. ; ‘Section 6, as here applied, stands no bation. . The requirement as to the filing of information . and the payment of a $1.00 annual fee does not, in and of itself, confiict with the Federal Act. But for failure to comply, this union has been en- joined from functioning as a labor union. It could , not without violating the injunction and also sub- jecting itself to the possibility of criminal punish- ment-even attempt:to bargain tosettle a controversy ~ or a strike. It is the sanction here imposed, and not the duty to report, which brings about a_ situation inconsistent with the federally protect- ed process of collective bargaining. Cf. Western - Union Telegraph Co. v. Commonwealth of Mas- " sachusetts, 125. U.S. 530, 553, 554, 8 S. Ct. 961, 965 966, e L.Ed. 790; Kansas City Southern R. Co. v. Kaw Valley Drainage District, 233 U.S. 75, 78, 34 S. Ct. 564,565, 58 L. Ed, 857, ‘St. Louis Southwestern Ry. v. State of Arkansas, 235 U.S. 350, 368, 35 S. Ct. 99, 204, 599 L. Ed. 265.. This is true because if the union or its representatives acted as bargaining agents without making the required reports, presumably they would be liable -both to punishment for contempt of court and to conviction under the misdeameanor section of the act. Such an obstacle to collective bargain- ing.cannot be created: consistently with the Fed- eral Act;?_ As stated by the Court below any doubt as to the continuing vitality of the decision of Hill vs. Florida, 325 US 538 was dispelled: by its recent approval in 9 the case of Nash vs. Florida Industrial Insurance Commission, 389 US 235. | Alaska relies in large ‘measure on DeVeau vs. Brasted, 363, US. 144. Appellant states (Jur. St. p. 19): ‘‘There is no requirement of Congressional ap- Veau, this court distinguishing. Hill specifically said: _. ‘An element most persuasive here, Congressional ap- proval of the heart of the State legislative program explicitly brought to its attention, was not present in that [Hill] case.’’ (emphasis meio _proval in DeVeaw or in any other case .....”’ In De- — a This Court also. mere in DeVeau “. .. that the challenged State legislation was part of | a program, - _ fully canvassed by Congress through. its own investi- . gations, .. .”’ (Emphasis supplied). These quotations from, DeVeau were cited and analyzed by the Tnree Judge Court below. The Court concluded that these distinctions made the doctrine of Hill rather than that of DeVeau applicable to the present case. The 1968 amendments adopted by the legislature of Alaska, which are contained in Appendix ‘‘E”’ of the Jurisdictional Statement, added to the penalties; ' specifically provided for civil enforcement by injunc- tive relief and added a new crime for ‘‘interference in chartering’’. Since the Court below invalidated the _ Act of 1967 (which would carry with it invalidation of the 1968 amendments), it seems unnecessary to advert further to the amendments of 1968 except to point out that the type of burdens and strictures, common to those stricken down in Aill vs. Florida, esi were increased. + By like token, since the decision of the Court below Payne APE eee FO 1a esd and rnd Seale At Ku Sm ph eX 10 struck down the laws of | 1967, we do not here more than mention the fact that the 1968 amendments per- mitted exemptions from criminal prosecution to unions which included ‘‘local hire preference pro- visions’’ in all of their agreements. Similar exemp- tion is denied to other unions who would equally be guilty of violation of the criminal‘provision but whose * contracts were difterent. The 1968 amendments clarify .the clash with the doctrine of Local 24 of IBT vs: Oliver, 358 US 283 and the conflict with the equal. protection clause. Mullaney vs. Anderson, 342 US 415; Brown vs. Anderson, 202 F. Supp. 96 (lnvelving Alaska resident preference statutes or regulations). ~~. This brings us to the state court civil injunction proceedings initiated by the State. Prior to the hear- ing by the Three Judge Court, a preliminary injunc- tion was granted in this state court proceeding which pertained solely to the operation of Loca] 302’s hiring hall and it’s procedures. Although the complaint in that case (p. 19 of Jur. St.) alleged violation of the so called ‘‘Local Autonomy Act’’, and although ¢oun- © sel now chooses to designate it as a ‘‘public nuisance’’ - action, the preliminary injunction is defended upon: the ground that it is warranted by this Court’s ruling “in Vaca vs. Sipes, 386 US 171. ‘The Three Judge Court below held that,- instead, the action and the preliminary injunction granted by the Superior Court were invalidated under the ruling of this Court in Plumbers’ Union vs. Borden, 373 US 690. Vaca dealtk with individual rights in the pro- cessing of grievances or enforcement of individual - rights. Borden on the other hand, dealt with alleged discriminatory practices in the operation of a hiring hall. We ‘quote from Borden:. | ug a6 “The problems inbrent in the operation o. unton hiring halls are difficult and complex, see Rothman, The Development and Current Status of the Law Pertaining to Hiring Hall Arrange- ments, 48 Va L Rev 871, and point up the im- portance of limiting initial competence to adjudi- cate such matters to a single expert federal agency.” (Emphasis supplied) 373 US 696, 697 The case of Ironworkers’ Union vs. Perko, 373 US 701, heard and decided at the same time as the Borden ease, lends further support to the position that the _ Borden doctrine is applicable to the case at bar. __-The court: below-placed its reliance upon Borden and the fact that hiring hall discrimination was there claimed as itwas in the Superior Court. action here. ? 2 However, in + linaeaihinn Vaca, .we cannot help but note another matter. Certainly this Court in Vaca vs. Sipes, 386 US 171, was not intending to re-invalidate broad scale use of ‘the discredited labor injunction. No injunction was in- volved there. Vaca dealt with an individual problem and its resolution. The injunction here’applied to the entire operation of the union’s hiring hall and pur-. ported to freeze it into operating under its contract provisions. t Such ‘‘freezing’’ is entirely inconsistent with the doctrine that collective bargaining is a continuing ~ process, United Steelworkers vs. Warrior & G. Naw. - Co., 363 US 574 and the duty of the respective parties to apply, interpret, amend or even supplement a con- . tract where necessary or desirable, Humphrey vs. Moore, 375: US 335; and Ford Motor ici y US. Huffman, 345 vai 330. ‘8 eer shaaphiciib eine M cnanc opto et A GCs Samet Sel ate Mie . : REG AR ata NNR AS Ui SARL SWORN Uh cents ishacilapi sp She enewsie ANNI of eagle themselves, into the ¢ ing process. Official state intrusion ‘into the free eollectivé bar- gaining process interferes with the bargaining par- ties? federal rights. Local 24'of I.B.T. vs. Oliver, 358 US 283;. General Electric Company vs. ' Callahan, (CA5 1961) 294 F.2d 60, Cert Dism 369 US 832; and Pan Am Airways vs. California Division Labor Law, 203 F Supp 324. Vaca does not hold otherwise. Therefore, it is clear that Plumbers Union vs. Borden,- 373 US 690, is controlling here as to’ state court jurisdi¢tion and Vaca vs. —_— 386 US ral is __not- “apposite. Ii MOTION TO DISMISS AS TO APPELLANTS . LEO A. PHILLIPS, ALFRED M. WHITE AND | - \WILEIAM JONES : ‘All appellees, except the National. Labor Relations Board, move the Court to dismiss the appeals of Leo ~ - A. Phillips, Alfred M. White and William Jones for the reason that they were not:parties below. STATEMENT IN SUPPORT OF MOTION TO _ DISMISS AS TO APPELLANTS LEO A. PHILLIPS, ALFRED M. WHITE AND. . WILLIAM JONES On May 3 1968, Leo A. Phillips, Alfred M. White and William Jones moved to intervene in Cause No.. J-18-67 (Doe. No. 44, Vol. -II). They appeared through their counsel, Savage, Erwin, and .Curran (Doe. No. 46, Vol. IL). Exhibits, including affidavits — to .which were attached numerous -unsworn and un- ‘signed documents, petitions, etc. were filed’ in ‘support of thé: Motion to Intervene (Doe: No. 44, ‘Vol. II). On May 22, 1968, an order was entered denying the motion of Phillips, White and Jones © ‘to intervene = No. 57, Vol. It). ™ No appeal was taken from that onder. Thereafter. those proposed intervenor played no crn additional part in the case. They were, for example, . ‘ “not parties to the stipulations of facts upon which” the cases were tried (Doc. No. 67. & 68, Vol. IT). Neither were ,they mentioned in the Court’s opinion below (Doc. No. 70, Vol. IT) nor in the. judgments entered (Doe..No. 74, Vol. II).: (There were. two . judgments entered in the two consolidated cases ‘al-* though only one, and that. an incorrect copy, is ii- cluded in the appendix to val J urisdictional State- ment. ) ' When counsel for the State of Alaska filed his amended notice of appeal on August 26, 1968 (Doc. No. 75, Vol. IL), he ineluded the proposed intervenors, although he had not purported to represent them before. If the proposed intervention was of right or the 7 denial was an abuse of discretion, the order denying intervention was an appealable order. Brotherhood _ of Railroad Trainmen vs. Baltimore & O. R. Co., 331 US 519; Missouri-Kansas Pipeline Co. vs. United -. States of America, 312 US 502; Textile Workers’ ; . , - ial RAS ene Liam hi oe satel * cei ten delta nities hen Pipe da fee ae ee “a BahGr Bina) KALA RIES be IZA a had To lee Sk had nd wm 14 : Union of America vs. Allendale Co., (CADC 1955) 226 F.2d 765; Nuesse vs.-Camp, (CADC — ) 385 F.2d 694. — On. the. other hand, as ‘pointed out by this Court in Brotherhood of Railroad Trainmen vs. Baltimore & O. R. Co., 331 US 519 at 524; if denial was within discretion and was not appealabile, and ergo, not re- viewable here, it would be because there was” ‘some other remedy available to the proposed intervenors and their rights to proceed otherwise have not been impaired. ‘The aniniels effect in this case is that the -appel- lants seek to bring before this Court-the unsworn statements, unsigned petitions and other improper documentary. material’ which were attached to affi- davits in support of the motien to intervene, which were never moved against nor answered by the ap- . pellees and were never before the Three Judge Court, because of the order denying the intervention. The stipulation of facts; upon which the case J-18-67 was tried, signed by all parties, but not by the proposed _ intervenors, (Doc. No. 67, Vol. II) contained a pro- - vision that the affidavits submitted by ‘‘parties’’ could be considered by the Three Judge Court. Appellants, by. seeking to make these proposed intervenors parties to this proceeding in the Supreme Court, are appar- ently attempting, ex post facto, to now make them ‘‘narties’’ under the stipulation and hence, get be- fore this Court the documents referred to above.. — _ Therefore, it is ‘respectively submitted that since the proposed intervenors, Philips, White and Jones, were not parties to the proceedings: below and did not appeal from the order denying intervention, mone appeal should’ ‘be ‘dismissed. 8 1. See | WS 7 | -» CONCLUSION , It is respectfully submitted that there is no: sub- | stantial question but that the. Alaska Statute is un- constitutional under Hill vs. Florida, 325 US 538 and Local 24 IBT vs. Oliver; 358 US 283, and that the Alaska state court lacked jurisdiction of the civil in- junction suit. under Plumbers’ Union vs. Borden, 373 US 690 and that: therefore, plenary consideration and oral argument are not nécessary and. the judgment below should be affirmed. Further, the attempted ap- peals of the rejected intervenors, Philips, White and _ Jones,. should: be dismissed. Respectfully submitted, J. DUANE “VANCE of VANCE, DAVIES, Rosekts & Berris | 1411 Fourth Avenue Building, Rm.-815 Seattle, a 98101" and -Rospert BooCHEVER of FAULKNER, BANFIELD, BooCHEVER « Doogan 311 Franklin Street, Suite 201 Juneau, Alaska 99801. Attorneys for all Appellees except the o — Labor Relations Board --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1223%3A4. Public record. Not legal advice.