Petitioners Reply Brief — Local 780, International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators v. Radio Corp. of America

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APR 7 1965

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JOHN F. DAVIS, CLERK |

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IN THE

Supreme Court of the United States

Ocroser Term, 1964

NO. 940

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, INTERN A-

TIONAL ALLIANCE OF THEATRICAL STAGE

EMPLOYEES OF THE UNITED STATES AND

CANA JA, AFL-CIO, by and through ARTHUR W.

BEsMAN, its business agent and representative,

Petitioners,

vs.

RADIO CORPORATION OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the District Court

of Appeal, Second District of the State of Florida

PETITIONERS’ REPLY BRIEF

BERNARD M. MAMET,

Suite 1326,

327 S. La Salle Street,

Chicago, Illinois 60604,

HArrison 7-7630,

Attorney for Petitioners

CHAMPLIN-SHEALY COMPANY. c>nCAe «GR SES

CrraTIons

Cases

American Dredging Co. v. Local 25, Marin? Division,

Internation | Union of Operating Engineers, AF L-

CIO, 338 F. 2d 837 (1964), cert. denied, March 8,

ey SS GA TE oc vctcesdeqocesesecssweess

Bailey v. Hayman’s, 73 Fle. 119i, 76 So. 135 (1917) ..

Davis v. 3trovle, 39 So. 2d 468 (1949) ..............

Garner v. Teamsters, 346 U. S. 485 (1953) .........

Gross v. United States Mortgage Company, 108 U. S.

Be EE. bk 56Ae stn Kndnneekvdeberesedeens ee

Indiana ex rel Brand v. Anderson, 303 U. §. 95 (1938)

Liner v. Jafco, Inc. 375 U. S. 301 (1964) ............

Local 174 Teamsters v. Lucas Flour Co., 362 U. S. 95

SEE snob ro hee vadiianactcadeens (his bcd shke's

Local No. 438 Construction - General Laborers’ Union

v. S.J. Curry, et al., 371 U. S. 542 (1963) ........

Manhattan Life Ins. Co. of New York v. Cohen, 234

le Se ED EE b bncns F0esdd adored bsé-vestesce.

McCarroll v. Los Angeles County District Counsel of

Carpenters, 49 Cal. 2d 45, 315 P. 2d 322 (1957), cert.

ST, BD ve Ws We CRO 6 vic coc ccidevccescess

McLean Distributing Co. v. Brewery & Beverage

Drivers, Warehousemen ¢ Helpers, Local 993, 254

Minn. 204, 94 N. W. 2d 514, cert. denied, 360 U. S.

Se GEE Nac dadecnnsetedicncedeteséonsvccce.

Murdock v. Memphis, 20 Wall. 590 (1875) ..........

National Surety Co. vy. Willys-Overland, Inc., 103 Fis.

© Ff & F. | er Crrrrrer

New Amsterdam Casualty Co. v. Utility Battery Mfg.

Co., 122 Fla. 718, 166 So. 856 (1935) .............

ii

Philadelphia Marine Trade Ass’n v. Int'l Longshore-

men’s Ass’x, Local 1291, 382 Pa. 326, 115 A. 2d 733,

cert. denied, 350 U.S. 843 (1955) =..<........... 7

Raley, et al. v. Ohio, 360 U.S. 423 (1959) .......... 3

Savage v. Horne, 49 So. 2d 329 (1950) ............. 4

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

CRUE 4 suk ceks cides saveke obenehexd eae cekes 7,8

Tampa Water Works Co. v. Wood, 104 Fla. 306, 139

ET oe ae eee nn eye ee eee 4

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

EE ew ks end ooh eh eee aes ea ceans 8

Tidewater Express Lines v. Freight Drivers, etc., 230

Md. 450, 187 A. 2c 685 (1963) ...............00-. 2,3

Whitney v. Californi1, 274 U. S. 357 (1927) ........ 3

In re Wilkins’ Estate, 136 Fla. 86, 186 So. 826 (1938) 4

Wittich v. O’Neal, 22 Fla. 592 (1886) .............. 6

Siatutes

Florida Annotated Statutes, Sec. 64.16 ............. 6

Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C., 101

| Nr rrr ree ry Pee 1, 2, 3, 4, 8

IN THE

Supreme Court of the United States

Ocroszr Tzem, 1964

NO. 940

LOCAL 780, INTERNATIONAL ALLIANCE OF THE-

ATRICAL STAGE EMPLOYEES AND MuvING

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.

On Petition for a Writ of Certiorari to the District Court

of Appeal, Second District of the State of Florida

PETITIONERS’ REPLY BRIEF

Petitioners, in their petition, have challenged the juris-

diction of the Florida court to restrain employees from re-

specting a peaceful primary picket line. In support of their

petition, they point to the doctrine of federal pre-emption

in picketing cases and the provisions of the Norris-LaGuar-

dia Act, (47 Stat. 70 et seq., 29 U.S. C. § 101 et seq.) limit-

2

ing the powers of courts to issue injunctions in labor dis-

putes, which Act, they contend, is part of a federal body of

labor law applicable to state courts. Respondent, while

contending state courts have the power to issue injunctions

in labor dispates, challenges the jurisdiction of this Court to

review the state court’s determination. To the extent that

Respondent raises matters not treated in our Petition, some

brief comment will be made.

Raising of Federal Question Below

Respondent contends that Petitioners’ sccind question

(applicability of Norris-LaGuardia Act) was not seasonably

raised below and is therefore not properly before this Court.

Respondent is in error. The question was litigated before

the District Court of Appeal (the last Florida tribunal to

express an opinion) and the Court not only expressly de-

cided the question but went to great lengths to express the

basis for its holding. Hence, relying upon state court cases’

which this Court declined to review, the Florida court stated

that “‘Numerous othe: state courts have sustained their

right, jurisdictionally, to utilize injurction against a strike

and picketing for breach of a collective bargaining agree-

ment.” (Pet., App. D, p. 25a). And, the Florida Court re-

lying upon a Maryland case’ noted that “state courts which

have permitted injunctions for breach of an existing labor

agreement generally are either in states having no anti-in-

junction statute, such as California and Ohio, or where, as

in Minnesota and Pennsylvania, there is express statutory

exemption of breaches of collective bargaining agreements

“ See Footnote 5, Court of Appeal Decision, Pet., App. D, p.

a.

2. Tidewster Express Lines v. Freight Drivers, etc., 230 Md.

450, 187 A. 2d 685, 688 (1963).

3

from the coverage of anti-injunction statutes.” (Pet., App.

D, pp. 25a-26a)* Significantly, in aid of its position that cer-

tiorari should not be granted, Respondent states that this

Court has, on at least four different occasions, denied re-

view of the exact question presented in our Question 2, citing

the identical cases cited by the District Court of Appeal in

its decision. (See Resp. Brief, p. 8). How then can Re-

spondent contend that the question was not considered?

“Insofar ‘as Florida is concerned,” stated the Florida

court, “there is no interdiction, either by statute or through

any decision of our Supreme Court which curtails jurisdic-

tional 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 express such a limitation upon jurisdic-

tion of a state court.” (Pet., App. D, p. 26a). Obviously, the

question was considered and decided and it is an “elemen-

tary rule that it is irrelevant to inquire how and when a

Federal question was raised in a (state) court . . . when it

appears that such question was actually considered and de-

cided.” Manhattan Life Ins. Co. of New York v. Cohen,

234 U. S. 123, 134 (1914). See also, Indiana ex rel Brand v.

Anderson, 303 U. S. 95, 98 (1938) and Raley, et al. v. Ohio,

360 U. S. 423, 436-437 (1959). And, of course, the opinion

of the state court is part of the record for the purpose of

determining whether a federal question thas been raised.

Murdock v. Memphis, 20 Wall. 590, 633 (1875); Gross v.

United States Mortgage Company, 108 U. 8. 477, 485-486

(1883) ; Whitney v. California, 274 U. S. 357, 361-362 (1927).

3. Significantly, the Court in Tidewater stated that it felt its

decision was controlled by the Maryland anti-labor injunction

statute, Code (1957), Art. 100, Sec. 65, which is patterned after

Section 4 of the Norris-LaGuardia Act, 29 U. S. C. 104.

Final Judgment

Respondent attacks the jurisdiction of this Court, con-

tending that its judgment below was not a final one within

the meaning of 28 U.S. C. § 1257. Yet, the Florida court

specifically held that “Absent a congressional or state enact-

ment or a judicial pronouncement by the United States

Supreme Court or the Florida Supreme Court to ‘the con-

trary, jurisdiction of the state court is not divested.” (Pet.,

App. D, p. 26a). Thus, the Florida court asserted its jur-

isdiction to deal with a controversv beyond its power and

this assertion was final, subject to no further state review

ater the Supreme Court of Florida had denied certiorari.

See Tampa Water Works Co. v. Wood, 104 Fla. 306, 312-

313, 139 So. 800 /*932); In re Wilkins’ Estate, 136 Fla. 86,

88, 186 So. 826 (1938) ; Savage v. Horne, 49 So. 2d 329, 330

(1950); and Davis v. Strople, 39 So. 2d 468, 469 (1949).

Petitioners’ entire argument below revolved around the

absence of jurisdiction in the state court. Whether the ques-

tion of jurisdiction is approached from the standpoint of

federal preemption or from the applicability of Norris-

LaGuardia, Petitioners contend that the ‘state court was

without power. And, the state court ruled that it had such

power notwithstanding federal preemption or Norris-La-

Guardia. Irrespective of the merits, such determination was

final and binding ‘and with this even Florida would agree, as

reflected in the cases cited above. The federal question pre-

sented here is whether the Florida courts had the power to

issue its injunction. And, as this Court held in Local No.

438 Construction & General Laborers’ Union v. 8S. J. Curry,

et al., 371 U. S. 542, 548 (1963) “Whether or not the (state)

courts have power to issue an injunction is a matter wholly

separate from'and independent uf the merits of respondents’

cause.” In Curry, this Court held that it had jurisdiction

5

to review oa certiorari the judgment of the Supreme Court

of Georgia reversing the denial by the trial court of a tempo-

rary injunction—precisely the situation here. The Court

pointed out that “There is no doubt that the jurisdiction of

the Georgia courts has been finally determined by the judg-

ment below and is not subject to further review in the state

courts.” Here, no less than in Curry, the embracing of Re-

spondent’s position would seriously erode the national labor

policy, render entirely illusory Petitioners’ right of review

and effectively dispose of any rights Petitioners may have.

Alleged Mootness

Having secured its order below and judicially coerced em-

ployees to cross the picket line and other employees from

inducing fellow employees to respect the picket line,‘ Re-

spondent has nothing more to ‘achieve and hence now con-

tends that the matter is moot.* This, like the other conten-

tions of Respondent, reflects the “hit and run” aspects of re-

4. Respondent takes exception in its brief (p. 2) to statements

in Petitioners’ Statement which “make it appear .. . that Respond-

ent sought a blanket order preventing all picketing by the Peti-

tioners, and enjoining the mere respecting of picket lines.” Re-

gspondent contends that no bianket order was sought or granted

and that it was not seeking an injunction limited to the respecting

of picket lines. With respect to the first point, we cannot see how

paragraph 1 and sub-paragraph a of the Temporary Restraining

Order (Pet., App B, p. 6 a) can be interpreted in any other way

than a blanket order. With respect to the seconu point, we will not

quibble with Respondent over whether it sought to restrain only the

respecting of picket lines or that plus something more. It is sufficient

to come within the ambit of the preemption doctrine that Respond-

ent admittedly sought to restrain employees from respecting a

picket line established at their own place of employment.

5. Respondent states that the dispute between the parties had

expired due to the signing of a new labor agreement (Brief, p. 17).

Respondent failed to note, however, that the new agreement ex-

pired on October 6, 1964, and no new agreement has yet been

consummated.

6

straining orders in labor disputes, particularly in areas

where there is a lag in accepting the principles of our na-

tional labor policy. The reasons for this Court assuming

jurisdiction are as cogent here as they were in this Court’s

decision in Liner v. Jafco, Inc., 375 U. S. 301 (1964). Here,

too, has Respondent posted an indemnity bond (Pet., App.

B, p. 7a; See Notation, Rec. 24). Contrary to Respondent’s

assertions (Brief p. 20) more than nominal damages were

suffered by Petitioners and more than nominal damages

are recoverahle under Florida law under an injunction bond

in view of Plorida’s allowance of attorney’s fees * (See Na-

tional Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 741,

138 So. 24, 25-26 (1931) ; Wittich v. O’Neil, 22 Fla. 592, 600

(1886); Bailey v. Hayman’s, 73 Fla. 1191, 1192, 76 So. 135,

136 (1917); New Amsterdam Casualty Co. v. Utility Rat-

tery Mfg. Co., 122 Fla. 718, 725, 166 So. 856, 859 (1935).

Such damages are recoverable under Florida law on the

bond in the same action upon the dissolution of the injunc-

tion. Florida Annotated Statutes, § 64.16. Moreover, sep-

arate and apart from the question of the indemnity bond,

the federzl question presented here, as in Liner, revolves

around the power of state courts to issue injunctions re-

sulting in the frustration of our national labor policy and

the deniai of federally protected rights of party litigants.

Such federal question has not been mooted.

As pointed out in our original brief, the Florida District

Court of Appeal directed the employees to cross the picket

line established by their tellow employees, or to quit. This

was within its :.wwer, stated the Florida court, and “Absent

a congressional or staiec enactment or a judicial pronounce-

ment by the United States Supreme Court or the Florida

6. Local counsel were employed not only in Brevard County,

Florida, but in Miami, Florida, as well.

SINTER Me Ce Nn RS enema

7

Supreme Court (which refused certiorari) to the contrary,

jurisdiction of the state court is not divested.” (Pet., App.

D, p. 26a). And, absent a pronouncement from this Court,

as the Florida court states, a plaintiff in the Florida courts

will be able to secure injunctions, while the same plaintiff

yrould be denied an injunction in a federal court in the same

state. Moreover, the statement by knowledgeable counsei

that this Court’s denial of certiorari in ‘pre’ Lucas Flour *

and Sinclair Refining Co. v. Atkinson® cases of one of the

same questions (Norris-LaGuardia) presented herein was

“noteworthy” (Resp. Brief, p. 8), gives rise for further

alarm. The denial of certiorari in earlier cases coupled with

the instant and other state court decisions leads Respond-

ent’s counsel to the conclusion that the power of a state court

in granting injunctions revolves around the whim of the

state but that the contrary is true as regards federal

courts.° And, if counsel’s thinking represents even a par-

7% #B Marine Trade Ass'n v. Int’l Longshoremen’s

Ass'n, Local 1291, 382 Pa. 326, 115 A. 2d 733, cert denied, 360

U. 8. 843 (1955); McCarroll v. Los Angeles County District Coun-

cil of Carpenters, 49 Cal. 2d 45, 315 P. 2d 322 (1967), cert. denied,

355 U. S. 982 (1938); and McLean Distributing Co, v. Brewery &

Beverage Drivers, Warehousemen & Helpers, Local 903, 254 Minr.

204, 94 N. W. 2d 5il4, cert. denied, 360 U. S. 917 (1959).

8. Local 174 Teamsters v. Lucas Flour Co., 362 U. 8. 95 (1962).

9. 370 U. 5. 195 (1962).

10. Respoadent also cites American Dredging Co. v. Local 25,

Marine Division, International Union of Operating Engineers, AFL-

CIO, 338 F. 2d 837 (1964), cert. Genied March 8, 1965, Docket No.

830 (Brief, pp. 8-9) and implicitly represents to the Court that the

issue involved therein was whether the Norris-LaGuardia limita-

tions extend to the states. Respondent is in error. The only issue

before the Court in that case was the following:

Does Federal court’s original jurisdiction under Section 301

of ‘Caft-Hartley Act over suits for breach of collective bar-

gaining agreements permit removal of state court suit for in-

junction against strive in violation of no-etrike clause? (Em-

phasis supplied )

tial consensus of the bar, not only will this create disparity

of result between federal and state forums, but even from

state to stute the results will vary, as evidenced by ‘the Dis-

trict Court of Appeal decision (notably its fn. 5 and its dis-

cussion in text circa thereof, Pet., App. D, p. 25a). Add to

this the fact that some states have little Norris-LaGuardia

Acts * while others do not (not to mention the separate state

by state interpretation), and the product is a heterogeneous

conglomeration of varying results where uniformity is es-

seutial if a federal national policy is to prevail. Viewed then

in the overall framework and perspective of the regulation

of labor matters, this case presents serious »nd compelling

issues, the resolution of which is necesary to clarify the inter-

play of state and federa: powers which this Court has so

carefully developed since Textile Workers Union v. Lincoln

Mills, 353 U. S. 448 (1957) and Garner v. Teamsters, 346

U. S. 485 (1953). This case cuts across not only the ques-

tion. specifically ruled upon as regards federal courts in Sin-

clair Refining Co. v. Atkinson, 370 U. S. 195 (1962), but pre-

sents the basic issue of federal preemption, as well, because

‘ deals with peaceful picketing, the right to respect a picket

line at one’s own place of employment (or at least the right

9

to have the NLRB make the initial determination) and the

right to peaceably induce such respect.

Respectfully submitted,

Bernarp M. Mamet,

Suite 1326,

327 S. La Salle Street,

Chicago, Illixois 60604

HArrison 7-7630

Attorney for Petitioners

Chicago, Mlinois

April 6, 1965.