Petition for Writ of Certiorari — Local 780, International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators v. Radio Corp. of America

4

Office-Sucreme Court, U.S.

FILED

| FEB 26 1965

i

JOHN F. DAVIS, CLERK

— |

IN THE

Supreme Court of the United States

Ocroser Term, 1964

no. 94) .

LOCAL 780, INTERNATIONAL ALLIANCE OF THE-

ATRICAL STAGE EMPLOYEES AND MOVING

PICTURE MACHINE OPERATORS OF THE

UNITED STATES AND CANADA, AFL-CIO, by and

through JONATHAN R. REYNOLDS, its business

agent and representative, and LOCAL 666, INTERNA-

TIONAL ALLIANCE OF THEATRICAL STAGE

EMPLOYEES OF THE UNITED STATES AND

CANADA, AFL-CIO, by and through ARTHUR W.

BEEMAN, its business agent and representative,

Petitioners,

Vs.

RADIO CORPORATION OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL, SECOND DIS-

TRICT OF THE STATE OF FLORIDA

BERNARD M. MAMET,

Suite 1326,

327 S. La Salle Street,

Chicago, Illinois 60604,

HArrison 7-7630,

Attorney for Petitioners

OMLBPLIN-OHEALY COMPANY, CONGASO EB y SEB

£0) Re MANNII

INDEX

PAGE

Citations to Opinions Below .... 0 ccc cccesccccccsces 2

OR RE RE ey Pr Te Pree eee 2

IIS e's vacasenédnercacvsecencasees 2

SIERO a ere ome yr 3

RN ee Dar ate hes CL as ced ve de eR ae eee ea 3

Reasons for Granting the Writ ...............2ee000: 7

INS 3 CA Gans cicagccasnd bess beta eeaaee earns 14

Po OCTET eee ree ee eT Pre rE rr ore la

CrraTions

Cases

Bernhardt v. Polygraphic Co. of America, 350 U. S.

eRe Seer re ere ee eer ee 13

Bogle v. Jakes Foundry C«., 362 U.S. 401 (1960) .. 10

Dowd Box Co., Inc. v. Courtney, 368 U.S. 502 (1962) 11

Drake Bakeries, Inc. v. Local 150, 370 U. S. 254

i: BERD ARG ips ae eg oe tn at anys 11

brie R. Co. v. Tompkins, 304 U. S. 64 (1938) ........ 13

L. G. Everist, Inc., 142 NLRB 193 (1963) .......... 9

General Drivers, Warehousemen and Helpers, Locai

89 v. American Tobacco Company, Inc., 348 U. S.

EE Foi cd nnn Cen eee ake’ rah een 9,10

Ea Parte George, 371 U. S. T2 (1962) .............. 10

In re Green, 369 U.S. GSO (1962) ... 0... cece cccass 10

Gueranty Trust Company v. York, 326 U. 8S. 99

CREE. Suna so crn en da bated) eeenbasenseuese es 13

Illinois Bell Telephone Co., 88 NLRB 1171 (1950) .. 7,8

Local 174 Teamsters v. Lucas Flour Co., 362 U. S.

pe acs Te Oe ELT ECT Oey Ot eT Cee 11,12

McCrary v. Aladdin Radio Industries, 355 U. S. 8

EUMEE Sieve aewest bows ave edelechseeveesus esas 10

. eee See =

ii

NLRB v. Stepp’s Friendly Ford, inc. —— F. 2d

——, 57 LRRM 2442 (C.A. 9, 1964) ............. 9

NLRB v. John 8. Swift Co., 277 F. 2d 641 (C.A. 7,

ies hiss ve cons 540s ba ¥e sed ee 20 9

San Diego Building Trades Council v. Garmon, 359

eds ee kd sek uae ae kd oebn eos kn 7,8

Sinclair Refining Co. v. Atkinson, 370 U. S. 195

Neen da by.5 a ke-vee'sapebs secs vod ede 12

Teamsters, Chauffeurs and Helpers v. Kerrigan, 353

EE aS iR SL hid sd aens iecoddsantodaee's 9

Textile Workers Union v. Lincoln Mills, 353 U. S.

ee da Cad baa chs ad bake peee sees 12

Statutes

Labor Management Relations Act, 1947, Sects. 7, 8,

13, 61 Stat. 136, 29 U. S. C. § § 157, 158, 163:

Uk hola cu aes 60% 63's ue ne 6a ees Kok 3, 8, 11

EL Aaa ee cave Ue se eka ures enna 3, 8

RU SA GOR SENS eh KAC46485'5 0-04 nde end sense nes 3, 11

Norris-LaGuardia Act, Sec. 4, 47 Stat. 70, 29 U.S.C.

Satie a Wewekanec tne b acs can Ssanks Ole ee ae

Law Review

Meltzer, “The Supreme Court, Congress, and State

Jurisdiction over Labor Relations: II,” 59 Colum-

Ps bce dce 0s ia eees 00deeceees 13

IN THE

Supreme Court of the United States

October TERM, 1964

NO.

LOCAL 780, INTERNATIONAL ALLIANCE Or THE-

ATRICAL STAGE EMPLOYEES AND MOVING

PICTURE MACHINE OPERATORS OF THE

UNITED STATES AND CANADA, AFL-CIO, by and

through JONATHAN R. REYNOLDS, its business

agent and representative, and LOCAL 666, INTERN A-

TIONAL ALLIANCE OF THEATRICAL STAGE

EMPLOYEES OF THE UNITED STATES AND

CANADA, AFL-CIO, by and through ARTHUR W.

BEEMAN, its business agent and representative,

Petitioners,

vs.

RADIO CORPORATION OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL, SECOND DIS-

TRICT OF THE STATE OF FLORIDA

Petitioners pray that a writ of certiorari issue to review

the judgment of the District Court of Appeal, Second Dis-

trict, of the State of Florida, entered in the above entitled

case on January 17, 1964, the Supreme Court of Florida

having denied Petitioners’ petition for a writ of certiorari

therein on October 28, 1964.

CITATIONS TO OPINIONS BELOW

The temporary restraining order issued by the. Circuit

Court of Brevard County, Florida and the said Court’s sub-

sequent order dissolving the same are both unreported and

are printed in Appendices B and C hereto, infra. pp. 5a

tc 9a. The opinion of the District Court of Appeal, Second

District of the State of Florida, printed in Appendix D here-

to, infra, pp. 10a to 27a, is reported in 160 So. 2d 150.

The denial of certiorari by the Supreme Court of Florida,

printed in Appendix E hereto, infra p. 28a is, as of this

date, unreported.

JURISDICTION

The judgment of the District Court of Appeal was en-

tered on January 17, 1964. (Rec. 47). Rehearing was denied

on February 11, 1964 (Rec. 67). On October 28, 1964, the

Supreme Court ot Florida denied Petitioners’ petition for

a writ of certiorari (Rec. 107) On January 18, 1965, an ex-

tension was granted to file e petition for certicrari on or

before February 25, 1965. The jurisdiction of this Conrt

is invoked under 28 U.S. C. § 1257 (3).

QUESTIONS PRESENTED

1. Whether a state court is pre-empted from enjoining

employees covered by a collective bargaining agreement con-

taining provisions against strikes under certain circum-

stanees from crossing a peaceful primary picket line at their

own place of employment established by fellow employees

whose collective bargaining agreement had expired?

2. Whether a state court, in an action to enjoin an alleged

breach of a collective bargaining agreement, is required to

fcilow federal law and, accordingly, is bouna by the terms

3

of the Norris-LaGuardia Act, 47 Stat. 70 et seq., 29 U.S. C.

§ 101 et seq.. limiting the powers of courts to issue injune-

tions in labor disputes.

STATUTES INVOLVED

The statutory provisions involved are Sections 7, 8 and

13 of the Labor Management Relations Act, 1947, 61 Stat.

126, 29 U.S. C. § § 157. 15S. 163 and Section 4 of the Norris-

LaGuardia Act, 47 Stat. 70, 29 U. S. C. § 104. They are

printed in Appendix A, infra, pp. 1a to 4a.

STATEMENT

The instant dispute involves three separate bargaining

units of employees working at the same location covered by

separate collective bargaining agreements with the same

employer (Respondent). On December 18, 1961, Respond-

ent and Petitioner, Local 780, entered into a collective har-

gaining agreement covering a unit of film processors at

Respondent’s Cape Canaveral (now Kennedy) and Patrick

Air Force Base facilities (Kec. 16, 17), which agreement

expired on September 30, 1963 (Rec. 17-18). Being unable to

reach a new agreement, the employees in this bargaining unit

struck on October 29, 1963, and peaceably picketed Respond-

ent’s premises (Rec. 18-19). The picket line was respected

by some of Respondent’s employees covered by contracts

which did not expire ai October 5, 1964 (Ree. 18)—

namely, a contract with Local 780, covering camera repair-

men, which had been entered into on August 10, 1962, and

one with Local 666, covering photographers, entered into on

May 5, 1962 (Ree. 17-18). Both of the latter agreements

contained the following language:

1. Since no testimony was taken, the facts are taken primarily

from the complaint and other pleadings filed in the case.

+

“Section 2.2. AGREEMENT AGAINST STRIKES

AND LOCKOUTS.

“(a) The parties mutually agree that there shall

be no strike, work stoppage, slowdown, sitdown or pick-

eting by the UNION or its representatives or members

or lockout un the part of the COMPANY, unless and

until all steps of the grievance procedure, including ar-

bitration, shall have been employed and one of the par-

ties hereto fails or refuses to comply promptly with

any final decision made against such party thereunder.

“(b) If a strike by IATSE should occur, manage-

ment, supervisory and clerical employees, watchmen,

guards, firemen and other plant protection and mainte-

nance employees shall be permitted to perform their re-

spective functions withoat interference by the UNION

or its members on the basis of a plan mutually agreed

upon for such purpose by the COMPANY and the

UNION.

“(e) In consideration of this Section, the UNION

agrees not to sue the COMPANY, its ofiicers or rep-

resentatives, and the COMPANY agrees not te sue the

UNION, its officers or agents, for any labor matters, in

any court of law or equity, and neither party will in-

stitute any proceedings before any Government admin-

istrative board or agency for any act or omission of

the other party or its agents or representatives which

occurs during the life of this Agreement.”

On the same day picketing beguu, Respondent filed a com-

plaint in the Cireuit Court of Brevard County, Florida,

seeking a temporary and permanent injunction against Lo-

cal 780 (film processors) from inducing by peaceful picket-

ing or otherwise, the camera repairmen in Local 780 and

the photographers in Local 666 to respect their picket lines

(Ree. 13, 21). Respondent also sought to enjoin the camera

5

repairmen and the photographers from respecting the picket

lines of the striking employees (Ree. 21).

The trial court granted Respondent’s request in its en-

tirety and issued a temporary restraining order, er parle

without notice, prohibiting the striking film processing em-

ployees from picketing the Respondent and, in addition,

prohibiting Respondent’s employees in the other two bar-

gaining units from respecting the striking employees’ picket

line (Ree. 23-24). After mnsuceessfully atterapting to re-

move the matter to the federal district court, Petitioners

moved the trial court to vacate its restraining order on the

ground thet it did not have jurisdiction over the subject

matter (Ree. 25-26). The trial court granted the Petitioners’

motion and vacated the restraining order (Ree. 29). Re-

spondent sought supersedeas of the order vacating the re-

straining order (thereby seeking to reinstate the restrain-

ing order during the pendency of the appeal) in the Florida

District Court of Appeal (Ree. 33, 45-47). The appeal court

granted Respondent’s motion and, on request of Respond-

ent’s counsel in open court, limited the restraining order

to prohibiting non-striking employees (camera repairmen

and photographers) from honoring the picket line of the

striking employees (Rec. 45-46). Upon a plenary appeal,

this restraining order was reaffirmed by the District Court

of Appeal with the court specifically treating, but rejecting,

the questions presented in this Petition (Rec. 47-66). Al-

though refusing to acknowledge the principles of feder=]

pre-emption or the requirement that state courts must fol-

low federal law, the District Court of Appeal did hold that

“We should point out that such an order enjoining appellees

from striking and picketing carries no import that any per-

sen is required to continue as an employee or to return to

work: bni all remain possessed of the prerogative to dis-

continue their employment at will.” (Rec. 66, App. D.,

a, 7

6

infra, pp. 10a to 27a). The Ficzida Supreme Court subse-

quently denied a petition for certiorari filed by Petitioners

(Ree. 107, App. E, infra, p. 28a).

2. Petitioner Local 780 filed unfair labor practice charges with

the National Labor Relations Board alleging Section 8 (a) (1) and

(5) violations of the National Labor Relations Act, as amended

(Rec. 28). To complete the picture of the various documents filed

by the parties, Respondent sought a rule to show cause in the trial

court why the business agents of 'the two Local Unions as well as

employees of Respondent should not be held in contempt (Rec.

72-76).

e

7

REASONS FOR GRANTING THE WRIT

1. The decision of the District Court of Appeals is in

direct conflict with San Diego Building Trades Council v.

Garmon, 359 U. S. 236 (1959) and the other federal pre-

emption cases of this Court. The facts recall to mind some

of the reasons underlying the necessity for the doctrine of

pre-emption in concerted activity cases—an ex parte re-

straining orde” without notice—a petition for contempt—the

imposition of a restraining order by an appellate court

(without trial) although the lower court had been convinced

that it had originally erred—and ‘a court decision which ad-

vised the employees that while they were enjoined from

respecting a pivket line there was no prohibition against

their quitting their employment. And all of this in the face

of the unfair labor practice charges filed against Respond-

ent (tec. 28) and a limited no-strike clause.*

3. Although we do not want to become invelved in a discussion

of the merits of the instant suit, since only a showing of “arguably”

protected activity is required in order to take a case out of a court's

jurisdiction, nevertheless it might be appropriate to note that the

no-strike clause herein (App. F, infra, p. 29a, clearly does

not appear to apply to a refusal by employees to cross a picket

line at their own place of employment. Thus, the clause prohibits

strikes or work stoppages “. .. unless and until all steps of the griev-

ance procedure . . . have been employed... .” The obligation not to

strike or to stop work therefore appears to apply only to matters

encompassed by the grievance procedure. Article XV, entitled

“Grievance Procedure” (App. F, infra, pp. 29a to 32a) of the col-

lective bargaining agreement, which is incorporated by reference in

the Complaint by paragraph 15 thereof (Rec. 18), provides a pro-

cedure for resolving only grievances “. . . with respect to the inter-

pretation or application of any provision of this Agreement . . bg

Hence, a grievance relating to the question of crossing a picket line

established by other employees of the company is outside the scope

of coverage of Article XV and therefore ipso facto not affected by

the no-strike clause. The admonishment of the Trial Examiner in

Illinois Beli Telephone Co., 88 NLRB 1171, quoted infra, fn. 4, pg.

8 that a no-strike clause must not necessarily be construed to

contain a promise not to cross a picket line, would therefore be very

&

In Garmon, this Court clearly enunciated that when activ-

ities ure arguably prohibited by Section 8 of the National

Labor Relations Act, or protected by Section 7, no court—

be it state or federal—has jurisdiction to restrain such ac-

tivity on the application of a private party; that the

courts are not primary tribunais to adjudicate such issues;

that so as to insure uniformity, and to properly effectuate u

fair administration of the Act, determinations in this area

must be left in the first instance to the National Labor Re-

lations Board. Absent “compelling precedent applied to

essentially undisputed facts” (p. 246) and ‘‘In the absence

of the Board’s clear determination that an activity is neither

protected nor prohibited” (Jbid.) the state courts are ousted

of jurisdiction.

We have here no clear Board determination that the ac-

tivity is neither prohibited nor protected ; nor, are there com-

pelling precedents applied to undisputed facts. Rather, we

have clear Board decisions that in respecting primary picket

lines of one’s own employer, the respector of the picket line

will be treated as the striking employees. Illustratively, in

Illinois Bell Telephone Company, 88 NLRB 1171 (1950) the

employer contended that the refusal of eight of its em-

ployees to ernss a picket line established by another of its

bargaining units amounted to a strike in violation of an ex-

isting no-strike agreement and it was, therefore, privileged

to demote these employees. The Board rejected this con-

tention * and held that the employees’ conduct in refusing

pertinent here. In any event, the necessity of having the Board

determine the question of the permissibility of the employees’ ac-

tivity herein in the first instance is manifest.

4. The Board held that there was no no-strike clause in exist-

ence. It therefore found it unnecessary to consider the Trial Exam-

iner’s statement that even assuming that a no-strike clause existed,

“... it does not necessarily follow that it (the no-strike clause) must

also be construed to contain an agreement by the employees in the

unit inaat they will, during the period of the (agreement) cross any

Palidly established legal picket line at their place of business.”

9

to cross the picket !ine was protected under the Act. Simi-

larly, in the recent case of L. G. Everist, Inc., 142 NLRB

193 (1963), the Board held that employees who refuse to

eross a picket line are engaged in protected activity. The

Board staied that such employees “. . . are similar to eco-

nomic strikers, who may also be replaced by an employer

to permit continued operation of the business but, who, if

not permanently replaced, are entitled to reinstatement up-

on unconditional application.”” To follow the Florida

court’s aupreach, however, one would never reach the ques-

tion as to whether or not an employee respecting a picket

line might be entitled to reinstatement at the end of the

strike, for the court said, either retrain (under threat of

contempt action) from refusing to cross the picket line, or

quit. The employer would no longer be confronted with the

question of whether or not to reinstate, for the employees’

action of quitting would have heen voluntary, even if ju-

dicially coerced.

The exact question presented here is not new for this

Court. In a number of cases this Court has reversed per

curiam, on pre-emption grounds, the action of state courts

in granting injunctions ordering employees of common car-

riers to refrain from refusing to cross picket lines. T’eam-

sters, Chauffeurs and Helpers v. Kerrigan, 353 U. S. 968

(1957), General Drivers, Warehousemen and Helpers, Local

?

f

5. Two recent cases where courts have held the refusal of em-

ployees to cross a picket line at their own place of employment © Je

protected activity are the following: NLRB v. John 8. 8wijt vo.,

277 F. 2d 641 (C.A. 7, 1960); NLRB v.-Stepp’s Friendly Ford, Inc.,

—_— F, 24 ——, 57 LRRM 2442 (CA 9, 1964). In the latter case, the

Court held that, although the employer was not guilty of a refusal

to bargain and the union’s strike and picketing at his premises did

not constitute an unfair labor practice strike, nevertheless the em-

ployer violated § 8 (a) (3) of the Act by discharging an employee

for refusing to cross the picket line, since such a refusal constituted

protected activity under the Act.”

10

No. 89 v. American Tobacco Company, Inc., 348 U. S. 978

(1955), McCrary v. Aladdin Radio Industries, 355 U. S. 8

(1957), Bogle v. Jakes Foundry Co., 362 U. S. 401 (1960).

In each of the cases, as here, the contention was made that

the employees had an obligation to cross the picket lines. In

the common carrier cases, the obligation was created by law

—here it is contended that the obligation is one of contract.

Certainly, even with a clear no-strike clause, it cannot be

contended that there is greater legal efficacy to such a clause

than to a statutory duty imposed as part of public policy of

as‘ate. In fact, the case of In re Green, 369 U.S. 689 (1962)

involved a factual situation where the employer contended

that a refusal to work constituied a breach of a “no-strike”

obligation. Recognizing the speciai competence of the Board

and the union’s contention that the case arguably involved

matters within the exclusive jurisdiction of the Board, the

Court held that “a state court is without power to hold one

in contempt for violating an injunction that the state court

has no power to enter by reason of federal pre-emption.” (p.

692). Moreover, the instant case is not limited to matters

concerning employees who refuse to cross a picket line. It

additionally involves the rights of striking employees to in-

duce other employees to observe their picket line. Do not

striking employees have such right? And, is not aa injunc-

tion against respecting a picket line interference with tk2

striking employees’ right te seek such respect? If it is not

clearly interference, is it not at least arguably so? Such

was the situation in the case of Ex Parte George, 371 U. S.

72 (1962), where the employer contended that the picketing

was to secure the disregard, breach, or violation of the col-

lective bargaining agreement by the employees of a non-

struck subsidiary. This Court held tliat the activity, if not

prohibited, was at least arguably protected and, hence, pre-

empted.

i1

In the final analysis, no matter who the eraployer seeks

to enjoix, the employer is attempting to break a strike of

employees seeking to exert peaceable and legitimate econo-

mie pressure in order to obtain a new collective bargaining

agreement. If Section 7, buttressed by Section 13 of the

Act, is to be meaningful, then certainly the Board end not

the courts must make the determination regarding conflic-

ing claims as are involved here. Long before unionism,

employees could quit their employment and, in part, one of

the reasons for organization was to secure the right to re-

sist the only then alternative—as the Florida court now

suggests—that of quitting. And this does not necessarily

imply that the employee’s rights are absolute or that he

may not be acting at his own peril when he respects a picket

line. We only contend that the protections or penalties flow-

ing from this concerted activity are for the Board, not the

courts, to determine.°®

2. This case additionally presents a question of great

importance in labor relations and one specificaliy reserved

by this Court in its footnote 8 in Dowd Box Co., Inc. Vv.

Courtney, 368 U. S. 502 (1962). The Court there stated

that in the oral argument of the case the question of whether

the Norris-LaGuardia Act might be applicable to a suit

brought in a state court for violation of a contract made by

a labor organization was discussed. The question, however,

was not involved in the case and the Court expressly re-

frained from intimating any view on it. At that time, how-

6. In submitting the foregoing, we, of course, do not contend

that the employer could not have sued Petitioners for damages for

an alleged breach of the contract such as in Local 17.’ Teamsters

v. Lucas Flour Cc., 362 U. S. 85 (1962) or sought arbitration :nder

the provisions of the collective bargaining agreement such ‘s in

Drake Bakeries, Inc. v. Local 150, 370 U. S. 24 (1962). We ave

concerned ourselves only with the protected activity and not the

other employer remedies available.

12

ever, the Court had not yet decided Sinclair Refining Co. v.

Atkinson, 370 U. S. 195 (1962). In Sinclair the Court held

that Norris-LaGuardia prohibits injunctions by federal

courts in suits for brewch of collective bargaining agree-

ments.

In the instant matter, the Florida court held that Norris-

LaGuardia is not applicable to state court suits. In so hold-

ing, it ignored the principles of uniform handling of prob-

lems of labor relations and the supersession of state sub-

stantive law emphasized by this Court in Textile Workers

Union v. Lincoln Mills, 353 U. S«44%(1957) and subsequent

cases, as, for example, Local 174, Teamsters v. Lucas Flour

Co., 369 U. 8. 95 (1962). In Lucas Flour, overruling a state

court’s concept that it could apply local rather than federal

labor law in a suit to enforce a collective bargaining agree-

ment, the Court declared that the utilization of state law

was erroneous and that “... incompatible doctrines of local

law must give way to principles of federal labor law.” (p.

102). The Court stated:

“The dimensions of § 301 require the conclusion that

substantive principles of federal labor law must be par-

amount in the area covered by the statute. Compre-

hensiveness is inherent in the process by which the law

is to be formulated under the mandate of Lincoln Miils,

requiring issues raised in suits of a kind covered by

§ 301 to be decided according to the precepts of federal

labor policy.” (p. 103).

Subsequently, in Sinclair Refining Co., 370 U. S. 195

(1962), the Court, in formulating that federal labor poticy,

held that Norris-LaGuardia prohibits injunctions in suits

for breach uf collective bargaining agreements.

The importance which this Court rightly attaches to uni-

formity would seem to require that the Nerris-LaGuardia

Act should also control state enforcement of collective bar-

13 ° ]

gaining agreements. It would seem anomalous to find that

the state court was required to follow federal law when the

remedy sought was damages but that this same court eould

apply doctrines of local law incompatible with federal labor

law when the remedy was for an injunction. Nor is any

useful purpose served by arguing concepts of ‘“‘remedy”

rather than “substance”, for we are sure that it was never

intended that the uniformity desired could be thwarted by

permitting forum shopping in order to secure a labor in-

junction and different results in the federal and state ju-

dicial systems.’ The abuses of the labor injunction need

no amplification. It would indeed be ironic at this late stage

of our country’s development of a federal body of labor

law to find that our nation’s labor policy could be frustrated

by substituting the labor injunction in state courts for col-

lective bargaining. One wonders what the collective bar-

gaining process in this case would have produced, without

a strike, had the employer known that antiquated reme-

dies were not available to it because of the overriding na-

tional policy.

7. In this connection, this Cour*’s decision in Bernhardt v. Polu-

graphic Co. of America, 350 U. £. 198 (1956) is significant. There

the court held that a federal court, required by Erie R. Co. v. Tomp-

kins, 304 U. S. 64 (1938) to follow state “substantive” law in a di-

versity action, was barred from specifically enforcing an agreement

to arbitrate where that remedy was not available under the appli-

cable state law. It found the remedy “outcome-determinative”’

within the meaning of Guaranty Trust Company v. Yori, 326 U. S.

99 (1945). In the converse situation, presented under § 301, the

requirement of uniformity would seem to require the states to deny

injunctive relief if it is not available under federal law. See Melt-

zer, ‘The Supreme Court, Congress, and State Jurisdiction over La-

bor Relations: 11,” 59 Columbia Law Review, 269, 280 (1959).

14

CONCLUSION

For the foregoing reasons this petition for certiorari

should be granted.

Respectfully submitted,

Bernarp M. Mamet,

Suite 1326

327 South La Salle Street,

Chicago, Dlinois 60604

HArrison 7-7630

Attorney for Petitioners

Chicago, Illinois,

February 24, 1965.

APPENDICES

INDEX

APPENDIX A—Statutes Involved ................

APPENDIX B—Temporary Restraining Order .....

APPENDIX C—Order Dissolving Temporary Re-

straining Order ..........----++++-

APPENDIX D—Opinion of Court of Appeal ........

APPENDIX E—Denial of Petition for Certiorari ...

APPENDIX F—Collective Bargaining Provisions In-

DEE ccc cu sahhdeiadeeee kere

ss

EDEL IE ELL LEI LEI EN A PR ETI

la

APPENDIX A

STATUTES INVOLED

Labor Management Relations Act, 1947, Sections 7, <,

13, 61 Stat. 136, 29 U. S. C. § § 157, 158, 163:

See 7:

“Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choos-

ing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid

or protection, and shall also have the righ. to refrain

from any or all of such activities except to the extent

that such right may be affected by an agreement re-

quiring membership in a labor organization as a con-

dition of employment as authorized in section 8 (a)

(3).”

Sec 8:

(b) It shall be an unfair labor practice for a labor or-

ganization or its agents—

)

(4) (i) to engage in, or to induce or encourage any

individual employed by any person engaged in com-

merece or in an industry affecting commerce to engage

in, a strike or a refusal in the course of his employment —

to use, manufacture, process, transport, or otherwise

handle or work on any goods, articles, materiuls, or com-

modities or tc perform any services; or (ii) to threaten,

coerce, or restrain any person engaged in commerce or

in an industry affecting commerce, where in either case

an object thereof is:

(A) foreing or requiring any employer or self-em-

ployed person tc join any labor or employer organiza-

2a

tion or to enter into any agreement which is prohibited

by section 8 (e);

(B) forcing or requiring any person to cease using,

selling, handling, transporting, or otherwise dealing

in the products of any other producer, processor, or

manufacturer, or to cease doing business with any other

person, or forcing or requiring any other employer to

recognize or bargain with a labor »rganization as the

representative of his employees unless such labor or-

ganization has been certified as the representative of

such employees under the provisions of section 9: Pro-

vided, That nothing contained in this clause (B) shall

be construed to make unlawful, where not otherwise un-

lawful, any primary strike or primary picketing;

(C) foreing or requiring any employer to recognize

or bargain with a particular labor organization as the

representative of his employees if another labor organi-

zation has been certified as the representative of such

employees under the provisions of section 9;

(D) foreing or requiring any employer to assign

particular work to employees in a particular laber or-

ganization or in a particular trade, craft, or class rather

than to employees in another labor organization or in

another trade, craft, or class, unless such employer is

failing to conform to an order or certification of the

Board determining the bargaining representative for

empioyees performing such work;

Provided, That nothing contained in this subsection (b)

shall be construed to make uniewful a refusal by any person

to enter upon the premises of any employer (other than his

own employer), if the employees of such employer are en-

gaged in a strike ratified or approved by a represeritative of

such employees whom such employer is required to recog-

os

3a

nize under this Act: Provided further, That for the pur-

poses of this paragraph (4) only, nothing contained in

such paragraph shall be construed to prohibit publicity,

other than picketirg, for the purpose of truthf lly advising

the public, including consumers and members of a labor or-

ganizztion, that 2 product or products are produced by an

employer with wnom tne labor organization has a primary

dispute and are distributed by another employer, as long as

such publicity does not have an effect of inducing any in-

dividual employed by any person other than the primary

employer in the course of his employment to refuse to pick

up, deliver, or transport any goods, or not to perform any

services, at the establishment of the employer engaged in

such distribution ;”

Sec. 13:

“Nothing in this Act, except as specifically provided

for herein, shall be construed so as either to interfere

with or impede or diminish in any way the right to

strike, or to affect the limitations or qualifications on

that right.”

Norris-La Guardia Act, Sec. 4, 47 Stat. 70, 29 U.S. C. 104:

“No court of the United States shall have jurisdic-

tion to issue any restraining order or temporary or

permanent injanction in any case involving or growing

out of any labor dispute to prohibit any person or per-

sons participating or interested in such dispute (as

these terms are herein defined) from doing, whether

singly or in concert, any of the following acts:

“(a) Ceasing or refusing to perform any work or

te remain in any relation of employment ;

“(b) Becoming or remaining a member of any labor

organize.tion or of any employer orgarization, regard-

less of any such undertaking or promise as is described

in section 103 of this title;

“(e) “Paying or giving to, or withholding from, any

person participating or interested in such labor dis-

te ~

4a,

pute, any strike or unemployment benefits or insurance,

or other moneys or things of value;

“(d} By all lawful means aiding any person partici-

pating or interested in any labor dispute who is being

proceeded against in, or is prosecuting, any aciion or

suit in any court of the United States or of any State;

“(e) Giving publicity to the existence of, or the facts

involved in, any labor dispute, whether by advertising,

speaking, partolling, or by any other method not in-

volving fraud or violence;

“(f) Assembling peaceably to act or to organize

to aci in promotion of their interests in a labor dispute;

“(g) Advising or notifying any person of an inten-

tion to do any of the acts heretofore specified ;

‘*(h) Agreeing with other persons to do or not to do

any of the acts heretofore specified ; and

“(i) Advising, urging, or otherwise causing or in-

ducing without fraud or violence the acts heretofore

specified, regarcless of any such und ~taking or pro-

mise as is described in section 103 of this title.”

5a

APPENDIX B

TEMPORARY RESTRAINING ORDER

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL

CIRCUIT IN AND FOR BREVART COUNTY,

FLORIDA. IN CHANCERY

Radio Corporation of America, a cor }

poration,

Plaintiff,

vs.

Local 780, International Alliance of

Theatrical Stage Employees, and

Moving Picture Machine Operators

of the United States and Canada,

AFL-CIO, by and through Jonathan

Reynolds, its business agent and j

representativeé and Local 666, In-

ternational Alliance of Theatrical

Stage Gmployees and Moving Pic-

ture Machine Operators of the

United States and Canada, AFL-

CIO, by and through Arthur W.

Beeman, its business agent and rep-

resentative,

No. 27040

Defendants. 2

TEMPORARY RESTRAINING ORDER

This cause coming on to be heard on Plaintiff’s sworn bill

of complaint, and upon its application for a temporary re-

straining order without notice, the court beimg advised in

6a

the premises and it appearing that the injuries apprehended

will be done if an immediate remedy is not afforded, and

that therefore, plaintiff is entitled to a temporary restrain-

ing order herein without notice, it is therefore,

CONSIDERED, ORDERED, ADJUDGED AND DE-

CREED, that pending further order of the court herein:

1. The Defendants, Local 780, International Alliance of

Theatrical Stage Employees, and Moving Picture Machine

Operators of the United States and Canada, AFL-CIO; Lo-

eal 666, International Alliance of Theatrical Stage HKm-

ployees and Moving Picture Machine Operators of the

United States and Canada, AFL-CIO; Jonathan Reynolds;

Arthur W. Beeman und all of the agents, servants, officers

and members of tae foregoing organizations and each of

them, be ‘and they ‘are hereby restrained and enjoined and

order to refrain from:

a. Calling, causing, inducing by picketing or other-

wise, or in any other way participating in any strike,

work stoppage, slowdown, sitdown or picketing, at any

of the plaintiff’s facilities located at Cape Canaveral,

Florida.

b. Calling, causing, inducing or in any way partici-

pating in any strike, work stoppage, slowdown or pick-

eting ai the plaintiff’s facilities located at Patrick Air

Force Base, Florida, except with respect to employees

who are members of the bargaining unit with respect to

which RCA Service Company, a division of Radio Cor-

poration of America, and International Alliance of The-

atrical Stage Employees and Moving Picture Machine

Operators of the United States and Canada (AFL-CIO)

and its local 780, entered into a collective bargaining

agreement on December 18, 1961, covering photographic

laboratory employees, which contract expired midnight,

September 30, 1963.

Ta

e. Calling, causing, inducing or in any way partici-

pating in any strike, work stoppage, slowdiwn, sit-

down, or picketing at the plaintiff’s facilities or at any

place where the plaintiff has employees working at the

Merritt Island launch area, Merritt Island, Florida.

This temporary restraining order shall become of full

force and effect upon the plaintiff giving bond as required

by law in the sum of Five Thousand Dollars and approved

by the Court or its Clerk, and upon the giving and approv-

ing of said bond, such approval to be endorsed hereon, the

Sheriff of Brevard County, Florida, is hereby ordered and

directed to forthwith serve said order upon said defendants

and each of them.

DONE AND ORDERED in Titusville, Florida, this 29th

day of October, 1963.

Vassar B. Carlton,

Circuit Judge.

8a

APPENDIX C

ORDER DISSOLVING TEMPORARY RESTRAINING

ORDER

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL

CIRCUIT, IN AND FOR BREVARD COUNTY,

FLORIDA

Radio Corporation of America, -

Plaintiff,

vs.

Local 780, International Alliance of Ch

Theatrical Stage Employees and N o7040

Moving Picture Machine Operators ”

of the United States and Canada,

AFL-CIO, et al.,

=~

Defendants.

Order Dissolving Temporary Restraining Order and Dis-

missing Action

This cause coming on this day to be heard upon the mo-

tion of the defendant to dissolve, set aside and vacate the

temporary restraining order heretofore issued herein, and

to dismiss the action, and the court having heard argument

pro and con, and being fully advised in the premises, and

the court having found that the subject matter of the con-

troversy is subject to the national Labor Relations Act, as

am -aded, and that in accordance with the decisions of the

e United States Supreme Court and the Supreme Court of

Sa

this state the matter is federally preempted and that the

sole forum authorized to grant relief, if any, is warranted,

is the National Labor Relations Board; it is thereupon

ORDERED, ADJUDGED, AND DECREED that the

temporary restraining order, heretofore issued herein, be

and the same is hereby vacated, dissolved, and set aside;

DONE AND ORDERED in Chambers, in Titusville, Fler-

ida, this 4th day of November, 1963.

Vassar B. Carlton /s/

Circuit Judge.

10a

APPENDIX D

OPINION OF COURT OF APPEAL

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JANUARY TERM, A. D. 1964

Radio Corporation of America,

Appellant,

vs.

Local 780, International Alliance of

Theatrical Stage Employees and

Moving Picture Machine Operators

of the United States and Canada

AFL-CIO, by and through Jonathan

Reynolds, its business agent and

representative, and Local 666, Inter-

national Alliance of Theatrical

Stage Employees and Moving Pic-

ture Machine Operators of the

United States and Canada, AFL-

CIO, by and through Arthur W.

Beeman, its business agent and rep-

resentative,

Appellees. J

5

ee

Case No. 4566

Opinion filed January 17, 1964.

Interlocutory appeal from the Circuit

Court for Brevard County; Vassar B.

Carlton, Judge.

lla

Fowler, White, Gillen, Humkey « Trenam,

Tampa; Crofton, Brewer & Holland,

Titusville, for Appellant.

Blackwell, Walker & Gray, Miami; Bernard

M. Mamet, Chicago, Illinois, for

Appellees.

KANNER, JUDGE.

Upon motion of the plaintiff-appellant, Radio Corpora-

tion of America, the Circuit Court of Brevard County en-

tered without notice a temporary restraining order * against

1. “CONSIDERED, ORDERED, ADJUDGED AND DECREED,

that pending further order of the court herein:

1. The Defendants, Local 780, International Alliance of

Theatrical Stage Employees, and Moving Picture Machine Op-

erators of the United States and Canada, AFL-CIO; Local 666,

International Alliance of Theatrical Stage Employees and Mov-

ing Picture Machine Operators of the United States and

Canada, AFL-CIO; Jonathan Reynolds; Arthur W. Beeman

and all of the agents, servants, officers and members of the

foregoing organizations and each of them, be and they are

hereby restrained and enjoined and ordered to refrain from:

a. Calling, causing, inducing by picketing or otherwise,

or in any other way participating in any strike, work stop-

page, slowdown, sitdown or picketing, at any of the plain-

tiff’s facilities located at Cape Canaveral, Florida.

b. Calling, causing, inducing or i:: any way participating

in any strike, work stoppage, slowdown, or picketing at the

plaintiff’s facilities located at Patrick Air Force Base,

Ficrida, except with respect to employees who are members

of the bargaining unit with respect to which RCA Service

Company, a division of Radio Corporation of America, and

International Alliance of Theatrical Stage Employees and

Moving Picture Machine Operators of the United States and

Canada (AFL-CIO) and its Local 780, entered into a collec-

tive bargaining agreement on December 18, 1961, covering

photographic laboratory employees, which contract expired

midnight, September 30, 1963.

c. Calling, causing, inducing or in any way participating

in any strike, work stoppage, slowdown, sitdown, or picket-

ing at the plaintiff's facilities or at any place where the

plaintiff has employees working at the Merritt Island launch

area, Merritt Island, Florida.”

12a

defendants-appellees, Local 780, International Alliance of

Theatrical Stage Employees and Moving Picture Machine

Operators of the United States and Canada, AFL-CIO, by

and through Jonathan Reynolds, its business agent and rep-

resentative; and Local 666, International Alliance of The-

atrical Stage Employees and Moving Picture Machine Oper-

ators of the United Siates and Canada, AFL-CIO, by and

through Arthur W. Beeman, its business agent and repre-

sentative. Pursuant to motion snbsequentiy made by a

pellees, the cireuit judge divsoived the temporary restrain-

ing order; the matter is before this court on interlocutory

appeal from the order of dissolution. Based upon appel-

lant’s petition for review of an order Gonying supersedeas,

this court reinstated the tempor? y restraining order with

modifications,’ pending outcome of this appeal.

The question raised here is one of jurisdiction, the chan-

ecellor having specified as basis for his order of dissolution

“* © * that the subject matter of the controversy is subject

to the National Labor Relations Act, as amended, and that

in accordance with the decisions of the United States Su-

preme Court and the Supreme Court of this state the matter

is federally pre-empted and that the sole forum authorized

to grant relief, if any, is warranted, is the National Labor

Relations Board * * *”.

4

;

i

i

if

i

é

i

E

|

|

13a

Oar view is at variance with that of the chancellor; from

our study, we have concluded that jurisdiction does lodge in

the state court.

No answer was filed nor testimony or controverting evi-

dence offered at the hearing on the motion to dissolve;

therefore, our factual review as it concerns the jurisdic-

tional problem necessarily falls within the confines of the

verified complaint.

Essentially, the complaint alleges that R.C.A. is engaged

at Patrick Air Force Base and Cape Canaveral* in the

photographing of missile tests performed by the United

States Government and in the processing and handling of

films thus made; that the work which it performs is of such

critical importance to the missile test program at the Cape

that the nation’s defense effort would be delayed and, be-

cause of this, United States Air Force and defense depart-

ment officials have stated that, unless performance is imme-

diately secured, this may result in canceilation of R.C.A.’s

contracts.

It is then alleged that through collective bargaining nego-

tiations with each of the defendant unions there exists a con-

tract containing the following provision:

“Section 2.2. Agreement against strikes and lockouts.

(a) The parties mutually agree that there shall be

no strike, work stoppage, slowdown, sitdown or picket-

ing by the union or its representatives, or members or

lockout on the part of the company, unless and until

all steps of the grievance procedure, including arbitra-

tion, all have been employed and one of the parties

hereto fails or refuses to comply promptly with any

final decision made against such party thereunder.”

3. Subsequently named Cape Kennedy.

l4a

It further appears from the complaint that in its opera-

tions R.C.A. employs, among others, a group of photog-

raphers, a group of processors, and a group of camera re-

pairmen; that the film processors group is represented by

Local 780, of the International Alliance of Theatrical Stage

Employees and Moving Picture Machine Operatocs of the

United States and Canada, AFL-CIO, which also represents

the unit of camera repairmen, and that the photographers

unit is represented by Local 666 of the same national union;

that R.C.A. and Local 780, as representatives of the film

processors, entered into a contract with respect to the em-

ployees of that group on August 10, 1962, set to expire Oc-

tober 5, 1964; that R.C.A. and Local 666 as representatives

of the photographers, entered into a contract as to that

unit of employees, this contract to expire also on October

5, 1964; that both contracts contain the same no-strike

clause hithe;xto quoted and that both are in full force and

effect.

There are also allegations setting out that on December

18, 1961, Local 780, as representative of the camera repair-

men’s unit, entered into a contract with R.C.A. and that

this contract expired on September 30, 1963; that attempts

to negotiate a new contract have thus far failed; that on

October 29, 1963, Local 780 caused the group of employees

under that expired contract to strike against R.C.A.; that

in furtherance of its strike Local 780 has caused members

and employees of R.C.A. to picket the entrances to its fa-

cilities at the Cape and Patrick Air Force Base; that the

picketing has induced R.C.A.’s employees at those two

places whose contracts are still in effect to strike in viola-

tion of the “no strike” clause; that employees of R.C.A.

who are members of Locals 780 and 666 and whose con-

tracts containing the “no strike” claus are still operative

are violating those contracts by striking and refusing to

15a

work; and that the damage and injury which R.C.A. suffers

and will suffer, absent the relief sought, is of such a nature

that the amount of it will be difficult if not impossible to as-

certain legally and that neither Local 780 nor Local 666 is

financiall;; able to respond in an action at law for damages.

Certain other allegations in the complaint relate to picket-

ing of International Brotherhood of Electrical Workers,

AFL-CIO, members employed by R.C.A. at Merritt Island,

but the request for relief as to those employees was aban-

doned. The restraining order is now sought to apply only

to the employees under the contracts in foree with Locals 780

and 666, respectively, which are scheduled to expire October

5, 1964. F

It thus appears that R.C.A. seeks to enforce the no-strike,

no-picketing pledge ef two collective barguining agreements,

premising its right to injunctive relief upon breach of tuem

by and throngh appellees.

Vhe labor unions maintain with respect to jurisdictional

residence of the cause that, by certain cases, the authority

of the state to issue injunctions in labor matters of this type

has been pre-empted by federal law under which the Na-

tional Labor Relations Board has beer accorded exclusive

jurisdiction of cuch matters. Perhaps the most heavily re-

riel upon cases advanced by them are those of Re Green,

1962, 369 U. S. 689, 8 L. Ed. 2d 198, 82 S. Ct. 1114; Ea

parte George, 1962, 371 U. S. 72, 9 L. Ed. 2d 133, 83 S. Ct.

178; General Drivers, Warehousemen, and Helpers, Local

Union No. 89 v. American Tobacco Co., Inc., 1955, 348 U.S.

978, 99 L. Ed. 762, 75 S. Ct. 569; Bogle v. Jakes Foundry Co.,

1960, 362 U.S. 401, 4 L. Ed. 2d 864, 80 S. Ct. 812; McCrary

v. Aladdin Radio Industries, Inc., 1957, 355 U. 8. 8, 2 L. Ed.

2d 22, 78S. Ct. 12; and Teamsters, Chauffeurs, Helpers &

Taxi Cab Drivers, Local Union No. 327 v. Kerrigan Iron

16a

Works, Inc., 1957, 353 T. S. 968, 1 L. Ed. 2d 1133. 77 8. Ct.

1955.

Re Green, decided May 21, 1962, involved an attorney rep-

resenting a labor union, who had been held in contempt by

an Ohio state court without a hearing which could have

given him an opportunity to establish that the court had no

power to issue the injunction because acting in a field exclu-

sively reserved by Congress for the National Labor Rela-

tiovs Board. The contempt charged was that of advising

the union to continue picketing in violat'%m of an ex parte

injunction. In habeas corpus proceedings in the state courts

the attorney challenged their jurisdiction to penalize him

for the conduct cited and was denied relief. On certiorari,

the Supreme Court of the United States reversed the judg-

ment below, holding that due process was violated by the

conviction without a proper hearing. The respondent had

argued that in the dispute between the employer and the

union there was not concerned any attempt to organize work-

ers nor any refusal of the employer to bargain, but only

the enforcement of a no-strike clause in a collective bar-

gaining agreement, which was left by Congress either to the

federal courts or co the state courts. The petitioner attor-

ney urged that the unfair labor practice charge filed with

the National Labor Relations Board was based on the em-

ployer’s refusal to bargain in good faith and that the

collective bargaining agreement which the employer sought

to have the state court enforce had been signed by unauthor-

ized agents. The Supreme Court of the United States, in

the course of its opinion, commented that it was impossible

to determine from the record whether or not the dispute was

exclusively within the jurisdiction of the National Labor

Relations Board and, further, that the Ohio court could not

know whether it was within bounds when, without a hearing,

it cited a person for contempt for violating the injunction.

i7a

Ass to the November 13, 1962, Ex parte George case, the

situation factually was one where the American Oil Com-

pany was involved in a labor dispute with the National Mari-

time Union, which peacefuliy picketed a refinery operated

by a subsidiary of American Oil Company. The subsidi-

ary had a valid collective bargaining agreement with another

union. A Texas court granted to the subsidiary a temporary

injunction against picketing at the refinery, finding that the

object of the National Maritime Union’s picketing was to

secure the disregard, breach or violation of the collee-

tive bargaining agreement by the refinery workers and

their union in violation of a Texas law. A port agent of

the National Maritime Union, despite the injunction, pick-

eted the refinery and was held in contempt. Upon habeas

corpus proceeding, the Texas Supreme Court held that the

contempt order was not roid, ruling that the port agent’s

eonduct was neither arguably prohibited nor arguably pro-

tected by the National Laber Relations Act. On certiorari,

the Supreme Court of the United States vacated the judg-

men of the Texas Supreme Court and stated that the dis-

trict court was without jurisdiction if the port agent’s pick-

eiing was arguably prohibited or arguably protected by the

National Labor Relations Act. The court held, in the light

of the Texas court’s finding that American Oil Company

wholly owned the subsidiary and directed and controlled all

of its activities, that even assuming without deciding that

the picketing would not fall within the preclusions of certain

sections of tue National Labor Relations Act, the port

agent’s picketing constituted conduct at least arguably pro-

tected by section 7 of the Act. As may be ascertained from

the above narrative and from a reading of the case, there

was .t0 contract between the injunctively restrained Mari-

time Union and the American Oil Company or its subsidi-

40

ary. Thus, the enforcement of ‘a collective barguining con-

tract was not at issue.

The other cases mentioned above as having been relied

upon by appellees are per curiam reversals by the Supreme

Court of the United States of state courts’ decisions, except

that in the Aladdin case the judgment was vacated and the

case remanded. A perusal of the factual data set out by

these state decisions * reveals that certain features are com-

mon to all. In each, the complainant was seeking to compel

other companies, common carriers, and their employees to

resume customary service despite picketing at the complain-

ing employer’s plant. In none did the complaining party

rely upon a collective bargaining agreement nor any no-

strike or no-picketing pledge between itself and its em-

ployees or any union on their behalf, but those against whom

the injunctive relief was sought and procured had no con-

tractual relations at all with the complaining employer. In

the General Drivers, Kerrigan, and Aladdin cases, the car-

riers’ employees were claiming to be exempt from perform-

ing their customary services by virtue of the provision in

their respective contracts with the carriers to the effect that

it shall net be a violation of such contract or a cause for

discharge for the employees to refuse to handle “unfair

goods”. In the Jakes Foundry case, the court simply char-

acterized the essentials as exactly similar to the Aladdin

ease, which there controlled. The Supreme Court of the

United States rendered each of the four opinions per curiam

4. General Drivers, Warehousemen and Helpers, Local Union

No. 89 v. American Tobacco Co., Inc., Ky. 1954, 264 S. W. 2d 250;

Jakes Foundry Co. v. Tennessee-Carolina Transp., Inc., 1959, 46

Tenn. App. 309, 329 S. W. 2d 364; Aladdin Radio Industries, Inc. v.

Associated ‘Trarsport, Inc., 1956, 42 Tenn. App. 52, 298 S. W. 2d

770; and Kerrigan fron Works, Inc. v. Cook Truck Lines, Inc., 1956,

41 Tenn. App. 467, 296 S. W. 2d 379.

19a

without comment, citing cases which, again, do not relate to

violation and enforcement of collective bargaining agree-

ments. Thus, in these four cases, the conduct protested had

to do with failure of the common carriers or their empioyees

to render “customary service”, which tiie Tennessee and

Kentucky courts said was required as a public duty both

under common and statutory law. As stated, that which

must be decided here is solely the question of jurisdictional

power of a state court to enforce collective bargaining agree-

ments; that which is complained of is breach of a no-strike,

no-picketing provision of the employees’ contract with their

employer via the respective local unions.

In opposition. to the views of appellees, the appellant,

R.C.A., urges that, under recent opinions, the Supreme Court

of the United States has indicated consistently that juris-

diction of state courts over suits involving violation of col-

lective bargaining agreements is not divested.

Section 301(a) of the Labor Management Relations Act,

1947, interpreted through certain United States Supreme

Court decisions, relates to suits for violation of contracts he-

tween an employer and a labor organization. This section

provides as follows:

“Suits for violation of contracts between an employer _

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be

brought in any district court of the United States hav-

ing jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citi-

zenship of the parties.” 61 Stat. 156, 29 USC, section

185(a).

In Dowd Box Co. v. Courtney, decided February 19, 1962,

368 U. S. 502, 7 L. Ed. 2d 483, 487, 82 S. Ct. 519, the sole

question was whether the above quoted subsection operated

CT a ee

to divest a state court of jurisdiction over a suit for viola-

tion of a contract between an employer and a labor organi-

zation. The answer of the Supreme Court of the United

States was that section 301(a) was not intended to deprive

a party to a collective bargaining contract of the right to

seek redress for its violation in an appropriate state tribu-

nal. Affirming the judgment before it, the court expressed

agreement with the Supreme Judicial Court of Massachu-

setts that the courts of that Commonwealth had jurisdic-

tion in the case, quoting from the Massachusetts *--ision:

“‘We do not accept the contention that State courts

are without jurisdiction. The statute does not so de-

elare. The conferring of jurisdiction in actions at law

upon the appropriate District Courts of the United

States is not, in and of itself, a deprivaiion of an ex-

isting jurisdiction both at law and in zquty in State

courts. The ease principally relied upon by the de-

fendant, Textile Wkrs. Union of America v. Lincoln

Miiis, 353 U. S. 448, does not so state. In the absence

of a clear holding by the Supreme Court of the United

States that Federal jurisdiction has been made exclu-

sive, we shall not make what would be tantamount to an

abdication of the hitherto undoubted jurisdiction of our

own courts.’” (Hmphasis supplied. )

The Supreme Court of the United States, turning subse-

quently te the question of congressional intent, pointed out

that Congress had rejected the proposal that violations of

collective bargaining agreements be made unfair labor prac-

tices, deliberately choosing instead to leave the enforcement

of such agreements ‘‘to the usual processes of the law.”

The case of Smith v. Evening News Association, 371 U.S.

195, 9 L. Ed. 2d. 246, 249, 83 S. Ct. 267, 268, decided by the

Supreme Court cf the United States on December 10, 1962,

involved an employee who, individually and as assignee of

other employees, brought a suit for damages against the

PAE:

employer for alleged breach of a collective bargaining con-

tract, although the alleged conduct of the employer was an

unfair labor practice within the jurisdiction of the National

Labor Relations Board. Both the trial court and the

Michigan Supreme Court were of the view that the state

court lacked jurisdiction, premised upon the ground that

the National Labor Relations Board had exclusive jurisdic-

tion of the subject matter. After decisions had been ren-

dered in certain other cases, including Dowd Box Co. v.

Courtney, supra, the Supreme Court of the United States

granted certiorari. As to jurisdiction of courts in suits

arising under section 301 and the vre-emption doctrine, the

court, reversing and remanding, said:

“The trial court sustained respondent’s motion to

dismiss for want of jurisdiction on the ground that the

allegations, if true, would make out an unfair labor

practice under the Labor Management Relations Act

and hence the subject matter was within the exclusive

jurisdiction of the National Labor Relations Board. The

Michigan Supreme Court affirmed, 362 Mich. 350, 106

N.W. 2d 785, relying upon San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 79 8. Ct. 773, 3 L. Ed

2d 775, and like pre-emption cases. Certiorari was

granted, 369 U. S. 827, 82 S. Ct. 843, 7 L. Ed. 2d 793,

after the decisions of this Court in Local 174, Teamsters

etc. v. Lucas Flour Co., 369 U. S. 95, 82 8. Ct. 571, 7

L. Ed. 2d 593, and Charles Dowd Box Co. v. Courtney,

368 U. S. 502, 82 S. Ct. 519, 7 L. Ed. 2d 483.

“Incas Flour and Dowd Boz, as well as the later

Atkinson v. Swmclair Refining Co., 370 U. S. 238, 82

S. Ct. 1318, 8 L. Ed. 2d 462, were suits upon ecllective

bargaining contracts brought or held to arise under

§ 301 of the Labor Management Relations Act and in

these cases the jurisdiction of the courts was sustained

although it was seriously urged that the conduct in-

volved was arguably protected or prohibited by the

Labor Management Relations Act and therefore within

22a

the exclusive jurisdiction of the National Labor Rela-

tions Board. In Lucas Flour as well as in Atkinson

the Court expressly refused to apply the pre-emption

doctrine of the Garmon case; end we likewise reject

that doctrine here where the alleged conduct of the em-

ployer, not only arguably, but concededly, is an unfair

labor practice within the jurisdiction of the National

Labor Relations Board. The authority of the Board

to deal with an unfair labor pract e which also vio-

lates a collective bargaining contract is not displaced by

§ 301, but it is not exclusive and does not destroy the

jurisdiction of the courts in suits under § 301. If, as

respondent strongly urges, there are situations in which

serious problems will arise from both the courts and

the Board having jurisdiction over acts which amount

to an unfair labor practice, we shall face those cases

when they arise. This is not one of them, in our view,

and the National Labor Relations Board is in accord.”

(Feotnotes omitted.)

It is to be observed that the Smith v. Evening News and

the Dowd cases just discussed, along with those of Lucas

Flour ard Atkinson to which the Supreme Court of the

United States made reference in the Smith case, were ac-

tions upon breach of collective bargaining contracts. The

Garmon ease (San Diego Bldg. Trades Council v. Garmon,

1959, 359 U. S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773), enunci-

ating the pre-emption doctrine, has as a distingrishing fac-

tual characteristic an absence of any breached collective

hargaining contract.

A New York court was confronted with the jurisdicticnal

problem in the May 1, 1963, case of Perry v. Robilotto, 39

Misc. 2d 147, 240 N. Y. S. 2d 331 (Sup. Ct.) a case in marked

parallel to the instant one. The cause was before the court

on application to obtain a stay to prevent a strike, pending

a hearing on an order for a temporary injunction against

a local union. The court concluded that the state court has

23a

jurisdiction to enjoin, as a breach of contrac, a strike which

is in violation of a no-strike clause in a collective bargain-

ing dispute, holding that the strike was not a “labor dis-

pute” within the New York Civil Practice Act.

In the California case of A. I. Gage Plumbing Supply

Company, Inc. v. Local 300 of the International Hod Car-

riers, Building and Common Laborers Union of America,

1962, 202 Cal. App. 2d 197, 20 Cal. Rptr. 860, an action for

injunctive relief by a contractor against a union for breach

of contract arising from a strike in violation of a collective

bargaining no-strike agreement, the court of that state said:

“Defendant appeals primarily on the grounds that

the trial court had no jurisdiction to try the action in

that the union’s conduct amounted to an ‘unfair labor

practice’ over which jurisdiction is preempted by the

federal government in the Labor Management Rela-

tions Act of 1947 and must be rectified, if at all, by the

National Labor Relations Board and not by a state

tribunal. Plaintiff urges that the suit is essentially one

for an injunction and for damages arising from a

breach of contract, even though such conduct might

also directly or incidentally be an unfair labor practice.

“The distinction between the two theories of suit is

fundamenial. If the suit is to enjoin and collect dam-

ages from an unfair labor practice absent any collec-

tive bargaining contract, it has been decided by the

United States Supreme Court that the federal govern-

ment has preempted this area of labor relations and in

the absence of an overwhelming state interest such as

violent picketing (Allen-Bradley Local v. Wisconsin

Employment Relatio~ Board, 315 U. S. 740, 749, 62

S. Ct. 820, 86 L. Ed. 1154; United Construction Work-

ers v. Laburnum Const. Corp., 347 U. S. 656, 74 S. Ct.

833, 98 L. Ed. 1025), the sole jurisdiction lies with the

National Labor Relations Board (San Diego Building

Trades Council v. Garmon, 359 U. S. 236, 79 S. Ct., 773,

3 L. Ed. 2d 775). This preemption occurs even though

24a,

the National Labor Relations Board has refused to hear

the controversy as happened in the instant case.

“On the other hand, if there is a collective bargaining

agreement in effect between the parties, and an action

is brought for an injunction, damages, or arbitration of

the dispute arising out of the contract the federal courts

and the state courts are proper tribunals for redress.

(Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502,

82 S. Ct. 519, 7 L. Ed. 2d 483; McCarroll v. Los Angeles

County, etc. Carpenters, 49 Cal. 2d 45, 315 P. 2d 322.)

“A breach of a collective bargaining contract is not

in itself an unfair labor practice. The National Labor

Relations Board has no jurisdiction to try the case nor

has it the power to give damages fo. breach of contract.

(Grunwald-Marz, Inc. vy. Los Angeles Joint Board, 52

Cal. 2d 568, 581, 343 P. 2d 23.)”

Yet another state court, that cf Pennsylvania, said in

Philadelphia Marine Trade Ass’n. v. Int'l. Longshoreman’s

Ass’n., 1955, 382 Pa. 326, 115 A. 2d 733, 736, cert. denied,

350 U. S. 843, 100 L. Ed. 751, 76 S. Ct. 84, a case which con-

cerned violation of a collective bargaining agreement :

“Defendants present several questions for determina-

tion, one of ~vhich chalienges the jurisdiction of the court

below on use ground that plaintiffs’ complaints are

cognizabie only in a Federal and not a State court. This

contention is specifically answered by the decision of

this court in General Building Contractors’ Association

v. Local Union No. 542, 370 Pa. 73, 87 A. 2d 250, 32

A. L. R. 2d 822, cited with approval in Garner v. Team-

sters, Chauffeurs and Helpers, Local Union No. 776,

373 Pa. 19, 25, 94 A. 2d 893, 897. In that case we up-

held the granting of an injunction which enjoined the

violation of a collective bargaining agreement by a

labor union. It was there argued that Congress, by en-

actment of the Labor-Management Relations Act of

1947, 29 U. S. C. A. § 141 et seq., had taken from the

State courts the jurisdiction to issue such an injunction,

258

but we held that neither that Act nor any other Federal

legislation deprived the State courts of their inherent |

equity powers for the enforcement of contracts.”

Numerous other state courts have sustained their right,

jurisdictionally, to utilize injunction against a strike and

picketing for breach of a collective bargaining agreement.’

Interesting is the case of Tidewater Express Lines v.

Freight Drivers, etc., 1963, 230 Md. 450, 187 A. 2d 685, 688.

There, the Court of Appeals of Maryland, commenting that

there seemed to be no room for any finding other than thct

the Maryland Legislature had taken away the power of the

court to issue the injunction there sought, observed that the

other state courts which have permitted injunctions for

breach of an existing labor agreement generally are either

in states having no anti-injunction statute, such as Cali-

5. McCarroll v. Los Angeles County District Co--ncil of Car-

penters, 1957, 49 Cal. 2d 45, 315 P. 2d 322, cert. denied, 355 U. S.

932, 2 L. Ed 2d 415, 78 S. Ct. 413; McLean Distributing Co. v.

Teamsters, Local 993, 1959, 254 Minn. 204, 94 N. W. 2d 514, cert.

denied, 360 U. S. 917, 3 2d 1534, 79 S. Ct. 1436; McLean

Misc. 2d 478, 184 N. Y. S. 2d 114:

Y. S. 2d 943; motion for leave to

. 2d 223; Anchor Motor

ne

3 . isc

2d 506; affirmed, 5 A. D. 2d 869, 171 N S. 2d 511; further pro-

ceedings reported at 10 A. D. 2d 994, 204 N. Y. S. 2d 98; 11 A. D. 2d

766, 204 N. Y. S. 2d 891; Republican Aviation Corp. v. Republic

Lodge 1987, 1957, 10 Misc. 2d 783, 169 N. Y. S. 2d 651 (Sup. Ct.)

, 1966, 157 N. Y. S. 2d 232 (Sup.

424; Masetta v. Nat'l. Bronze & Aluminur:s Foundry Co., 1952, @2

Ohio Abs. 374, 107 N. E. 2d 243; reversed on other zrounds, 159

Ohic St. 306, 112 N. E. 2d 15; Foley Const. Co. v. Local 100, 1960,

85 Ohio Abs. 332, 14 Ohio Ops. 2d 59, 172 N. E. 2d 170; General

Building Contractors Ass'n. v. Local No. 542, 1952, 370 Pa. 73, 87 A.

2d 250; Associated General Contractors v. Trout, 1961, 59 Wash. 2d

90, 366 P. 2d 16; Alabama Cartage Co. v. Int’i. Brotherhood, 1948,

250 Ala. 372, 34 So. 2d 576.

' 26a

fornia and Ohio, or where, as in Minnesota and Pennsyl-

vania, there is express statutory exemption of breaches of

collective bargaining agreements from the coverage of anti-

injunction statutes. Although New York, for example, has

an anti-injunction statute, the Maryland court characterized

it as less restrictive than that of Maryland. In Florida,

there is no such anti-injunction statute.

Both the appellant and the appellees, in connection with

their respective positions, cite the 1962 case of United Steel

Workers of America, AFL-CIO, Local 6140 v. Nubar Tool

& Engineering Co., Inc., Fla. App. 148 So. 2d 45, 49, cert.

denied 153 So. 2d 306, decided by this corrt. That case was

pot concerned with violation of any no-strike, no-picketing

provision of a collective bargaining contract, although the

court in its opinion made the collateral observation that:

“Equally clear is the provision that activities engaged

in by unions and/or employers arising out of a labor

dispute may be regrtated by the states if such activities

are neither protected nor prohibited under sections 7

and 8 of the N. L. R. A., supra. See International Unton,

U. A. W., A. F. of L., Local 232 v. Wisconsin Emp. Rel.

Bd., supra.”

Insofar as Florida is concerned, there is no interdiction,

either by statute or through any decision of our Supreme

Court which curtails jurisdictional power of the state court

to entertain a proceeding such as this; nor, as to the subject

matter here involved, does any act of Congress which may

be restrictive as to federal court jurisdiction expr2ss such a

limitation upon jurisdiction of a state court. “.bsent a con-

gressional or state enactment or a judicial pronouncement

by the United State Supreme Court or the Florida Supreme

Court to the contrary, jurisdiction of the state court is not

divested. From our sty and research, the precise ques-

tion presently before this court has not been adjudicated by

27a

the Supreme Court of the United States. We do not find

as persuasive the particular decisions of that tribunal urged

by the appellees. Rather, other United States Supreme

Court cases which we have cited, along with decisions ema-

nating from various states, leave us persuaded that juris-

diction of Florida courts under circumstances such as these

is not pre-empted.

The chancellor’s order of dissolution is reversed, with di-

rection that the temporary restraining order here involved

be modified to conform to this court’s alterations of it as

previously set out in footnote 2 of this opinion, so that it

shall apply only to the two existing contracts which we have

specified. We should point out that such an order enjoin-

ing appellees from striking and picketing carries no import

that any person is required to continue as an employee or

to return to work; but all remain possessed of the pre-

reeative to discontinue their employment at will.

Reversed and remanded.

SMITH, C. J., and SHANNON, J., CONCUR.

APPENDIX &

DENIAL OF PETITION FOR CERTIORARI

IN THE SUPREME COURT OF FLORIDA

JULY TERM, A. D. 1964

WEDNESDAY, OCTOBER 28, 1964

(Caption Omitted)

Case No. 33, 396

This cause having heretofore been submitted to the Court

on Petition for Writ of Certiorari upon the transcript of

record and briefs to review the order of the District Court

of Appeal, Second District of Florida, in said cause bearing

date January 17, 1964, and the record having been inspected,

it is ordered that s1xid Petition be and the same is hereby

denied.

A True Copy

TEST:

Sid J. White /s/

Sid J. White

Clerk Supreme Court

29a

APPENDIX F

COLLECTIVE BARGAINING PROVISIONS

INVOLVED

“Section 2... AGREEMENT AGAINST STRIKES

AND LOCKOU‘S.

“(a) The parties mutually agree that there -*all

be no strike work stoppage, slowdown, sitdown or pick-

eting by the UNION or its representatives or members

or lockout on the pari of the COMPANY, unless and

until all steps of the grievance procedure, including ar-

bitration, shall have been employed and one of the par-

ties hereto fails or refuses to comply promptly with any

final decision made against such party thereunder.

“(b) Ifa strike by IATSE should occur, manage-

ment, supervisory and clerical employees, watchmen,

guards, firemen and other plant: protection and mainte-

nance employees shall be permitted to perform their

respective functions without interference by the UNION

or its members on the basis of a plan mutually agreed

upon for such purpose by the COMPANY and the

UNION.

“(c) In considerativn of this Section, the UNION

agrees not to sue the COMPANY, its officers or repre-

sentatives, and the CUMPTNY agrees not to sue the

UNION, its officers or agents, for any labor matters, in

any court of iaw or equity, and neither party will in-

stitute any proceedings before any Government ad-

ministrative board or agency for any act or omission of

the other party or its agents or representatives which

occurs during the life of this Agreement.”

“Section 15.1. PRESENTATION OF GRIEV-

ANCES. If there is any grievance, dispute or differ-

ence between any employee covered by this Agreement

and the UNION or the COMPANY or among any of

CRIM TL RE UR OR RN TE CT I OL SC

30a

said parties with respect to the interpretation or appli-

cation of any provision of this Agreement, such griev-

ance, dispute, or difference shall be reduced to writing

and processed in accordance with the following steps in

this grievance procedure; provided, however, thai any

individual employee, or group of employees, shall have

the right at any time to present verbally, or in writing,

complaints or grievances to the COMPANY and to have

such grievances adjusted, without the intervention of the

UNION, as long as the adjustment is not inconsistent

with the terms of this Agreement, and provided the

UNION’S representative has been given an opportunity

to be present at such adjustments. A grievance shall be

negotiated in each of the following successive steps be-

tween the representatives and the parties specified in

each step.

“Step 1—Between the immediate supervisor and the

appropriate shop steward. The supervisor shall give

the shop steward his written reply to the grievance with-

in five (5) working days after the meeting with the shop

steward. If tuis reply is unsatisfactory, the shop stew-

ard may appeal the decision to Step 2 provided such

appeal is mide within five (5) working days after the

receipt of ‘h~ supervisor’s reply. A meeting in Step

2 shall be held within ten (i0) working days after re-

ceipt by the COMPANY of notice of appeal unless a

postponement is jointly agreed to by the COMPANY

and the UNION.

“Step 2—Between the next leve: of supervision and

the Chief Shop Stewar'. The COMPANY representa-

tive shall give his written reply within five (5) working

days after the meeting with the Chief Shop Steward. If

this reply is unsatisfactory, the Chief Shop Steward

may appeal this reply to Step 3 provided the appeal is

made within five (5) working days after the receipt of

the COMPANY representative’s reply. A meeting in

Step 3 shall be held within ten (10) working days after

receipt by the COMPANY of notice of appeal unless

a postponement is jointly agreed to by the COMPANY

and the UNION.

3la

“Step 3—Between the Personnel Manager for the

COMPANY at Patrick Air Force Base or his DES-

IGNEE and the Business Manager of the local UNION

er his DESIGNEE. The Personnel Manager or his

DESIGNEE shall make a reply in writing not later

than ten (10) working days after meeting with the

UNION’S Business Manager or DESIGNEE. If this

reply is unsatisfactory, the grievance may be appealed

to Step 4 provided such appeal is made within ten (10)

working days following receipt of the third step reply.

“Step 4—Between the Personnel Manager of the

RCA Service Company at Camden, New Jersey, or

his designated representative and the International

President of the IATSE, or his designated represen-

tative.

“Section 15.2. ARBITRATION. Any grievance

which has not been finally settled or disposed of in ac-

cordance with the steps of the Grievance Procedure out-

lined above may be submitted to Arbitration within

ten (10) working days of receipt of the Fourth Step

reply, by either Party, under the voluntary arbitration

rules then obtaining with the American Arbitration

Association, except that the Arbitrator shall be select-

ed as follows: The American Arbitration Association

shall submit as soon as possible to each of the Parties,

duplicate lists of the names of «'even (11) persons qual-

ified to act. The UNION and the COMPANY shall,

witLin the ten (10) days from the receipt of such lists,

3. dicate the order of preference, if any, for the names

ou. their respective lists. These lists shall be returned

to the Association which shall, thereupon, select the Ar-

bitrator from the name or names remaining. The Par-

ties agree that the decision or award of such Arbitrator

shall be final and binding on each of the Parties and that

they will abide thereby, subject to such laws, rules and

regulations as may be applicable. The authority of the

Arbitrator shall be limited to determining questions

involving the interpretation or application of specific

provisions of this Agreement, and no other matter shall

32a

be subject to arbitration hereunder. The Arbitrator

shall have no authority to add to, subtract from, or

to change any of the terins of this Agreement, to change

any rate in the Schedule of Salary Rates or to estab-

lish a new salary rate. Bach Party shall bear the ex-

penses of preparing and presenting its own case. The

cost, if any, of the Arbitrator, and the incidental ex-

penses mutually agreed to in advance shall be borne

equally by the Parties hereto. Failure to appeal a de-

cision made in any step in the time and manner speci-

fied above shall constitute a bar to further action there-

on.