# Petitioners Reply Brief — Local 780, International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators v. Radio Corp. of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0461%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1965 - **Citation:** 380 U.S. 973 ## Text “See Wo istyse CO; ‘wr tv. F { a APR 7 1965 ,Office-Suprems Court, U.S BD JOHN F. DAVIS, CLERK | { | 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0461%3A4. Public record. Not legal advice.