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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1965
- **Citation:** 380 U.S. 973

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0461%3A2. Public record. Not legal advice.