Petitioners Reply Brief — Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.

LIBRARY . eo 4 MA‘

i PREME COURT. Th th

IN THE

Supreme Court of the United States

OctToBeR TERM, 1967

No. 478

- AMALGAMATED Foop aeons. Union LOcAL 590,.

ET AL., Petitioners,

, ae | i

-

-Bedan Vater PLAzA, Inc. AND WEIS Markers, Inc.

| Respondents.

| On Writ of Certiorari to “the ‘Supreme Court of Pennsylvania

; \

A

so

*

>

REPLY’BRIEF FOR PETITIONERS

“s

(

"Luster -ASHER -. a

228 North LaSalle Street. L

Chicago, Illinois 60601, °

P Bernarp DuNAU

*" - 912-Dupont Circle Building

Washington, D. C. 20036 —

Attorneys for Petitioners

ELE EEE =

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C. >

oe ;

—

INDEX ao

ARGUMENT | . Page

I. Respondents’ Variations On The: Conclusory |

Theme Of Trespass, And Their Fictive View.

That The Picketing Was Physically Obstructive

Rather Than Peaceful .......0.ccccwccipccccesce 1

II. Respondents’ Untenable Posftion That The Pre-

Court Question Is Not Properly Before This ey

UE us bc kds kp oe co hve coobewsnnenesteekgres 1

? | TABLE OF CITATIONS

CASES:

Appeal of ipcaiek of Schuylkill Haven, 179 Pa. Super.

| — &: FR 5S RP rere re ieee ree 12

Carlson vy, Camtornia, 510 UB. TOG 2. gcc ccccdscsveses .2

C.1.0. v. McAdory, 325 U.S. 472 .......... seepnedwen. we

Cox v. Louisiana, 379.U.S. 536 ...... .ccervcccccccceces . §

Freeman v. Retail Clerks Union, Local No. 1207, 58

-. Wash, 2d 496, 363 P. 2d 808 ... 02s. ccccescnesses 11

- Gainesville v. Brown-Cummer Investment Co., 277 US.

RS A ey eer e re PTE rye Ter errr 14

Cue v. Waterman Steamship Corp., 373 U.S. 206 14

Hanna M ining Co. v. M.E.B.A., 382 U.S. 181 ......... 16

e Vv Stafford, 213 Tenn. 684, 378 S.W. 2d 766 . 11 -

Jes re. Application of Rita T. Chambers, 399 Pa. 53, 159

STE cn 44 Cha ec can 0ne Gena ek eeas owes 12

In re Gilbert’s Estate, 350 Pa. 13, 38 A. 3 eee

In re Green, 369 U.S. RRS aie 14

Iron Workers v. Perko, 373 U.S: 701 ..4..........06% 11

Kesler v. Department of Public Safety, 869 U.S.153.. 14

~ Liner v. Jafeo, S75 U.S. BOL... scvcccdocciccosscess 14, 17

Local No. 438, Construction. Union v. Curry, 371 U.S.

Dr Gia geese ds aude unaaaneehie ys Glue kauaese

Local 174, Teamsters v. Lucas Flour Co., 369 U.S.95.. 11

Local 24, "Teamsters v. Oliver, 358 U.S. | Se 3

_Magel v. Springs, 338 Pa. 452, os OD Seclecvecs 12 -

Marsh v. Alabama, 326.U.S. RRR RG 3

‘Matson Navigation Co. v. United States, 284 U.S. 352.. 14

_ McCann v. Philadelphia Fairfax Corp., 344 Pa. 636, f

| 26 A, 2d 540 per thebenseseesen oeKehceeseeueees 11

ii _.. Index Continued: »

‘Page

MoCoack v. City of Philadelphia, 372 Pa. 317,117 A. - |

1 MEL. Ra Pieks CeaWAsSresbided ceucneeeev esis ve sekuss ?

McCulloch v. Sociedad Nacional Da, Marineros D De

a: ey BIR RS, Aree -15

_ McGrath v. Kristensen, 340.U.S. 162 ..:........000565 14

_ Meat Cutters v. Fairlawn Meats, 353 U.S. 20 ........:° 10

Milk Wagon Drivers Union v. Meadowmoor : penrian, foe F

kt SB eee ere becttins gbcenas - 4°

‘Mitchell v. Maurer, 293 U. S. PERE re eer 14

Moreland Corp. v. Retail Store Employees Union Local

No. 444, 16 Wis. 2d 499, 114 N.W. 2d 876 ........ wt

Nash v. Florida’ Industrial Commission, No. 48, Octo-

ber Term, 1967, December 5, 1967..:............ 14

N.A.A.C.P. v. Button, Shi OPS paweners 3

N.L.R.B. v. Hearst Publications, 322 U.S. 111 ........ og

Pennsylvania Labor Relations Board v. Frank, 362 Pa. .

me © FM & Peres ty ere eee 13

People v. Goduto, 21 Ill 2d 605, N.E. 2d 385, cert.

Geet SIO TM GEE. 6 isin onde Sven s ct ateads cess rs ‘11

. Pittsburgh Railways Case, 357 Pa. 379, 54 A.2d891.. 13 _—..

Plumber’s Union v. Borden, 373 U.S. RR E IS 11: :

Provident Tradesmens Bank & Trust Co. v. Patterson,

_ 86 U.S. Law Week 4157 (S. Ct. January 29° 1968). *14

Rabouin v. N.L.R.B., 195 F. 24906 (C.A. 2) .......... oa

San Diego Building Trades Council v. Garmon, 359 |

RR ee pr eg ee 3,11

Seaboard Air Line Co. v. Daniel, 333 U.S. 118 .......; 14

State Farm Mutual Automobile Ins. Co. v. Semple, 407 | >

Pi, ee BOW, BE vidi wancnsccadecenkinies 12

.- Staub v. Baxley, UE SIM Rc oh n-05ks006400 60005 13

Taylor v. Haverford Tp., 299 Pa. 402, 149 A. 639 ..... 12

Thornhill’ v. Alabama, 310 U.S. 88 ............... ay

Tucker v: Bienenstock, 310 Pa. 254, 165 A. 247 ........ >

United Mine Workers v: Gibbs, 383 U.S. 715 . géanvcese Me

Ward v. Love County, 253 U. Seg ee 13

_. Weber v. Anheuser Busch, 348 U.S. 468 .............. s&s

Youngdahl v. — Oe We OE as sc dacicseccns «6&8.

MiscELLANEOUS: ! fe

; Restatement, Torts, § 779 (1939) . ps eslesebnisnsaceun. ©

9 Standard Pennsylvania Practice 339, 340, 362-363 ..11, 12

ce che Wheeled cntelaalgn Cg

IN THE

| Supreme Court of the United States

OctoBER TERM, 1967

AMALGAMATED Foop. EMPLOYEES UNION Locat. 520,—

ET AL., Petitioners,

v.

LOGAN VALLEY PLAZA, Inc. AND WEIS Markets, INC.,

Respondents.

On Writ of Certiorari to the Supreme Court, of Pennsylvania

REPLY SRIEF FOR PETITIONERS

I. RESPONDENTS’ VARIATIONS ON THE CONCLUSORY

_ THEME OF TRESPASS, AND THEIR FICTIVE VIEW

THAT THE PICKETING WAS PHYSICALLY OB-

* STRUCTIVE RATHER THAN PEACEFUL. ,

At the premises of a store located within a shopping

.center union workmen engaged in peaceful picketing

informing the public ‘that the store ‘‘is Non-Union,

these employees are not receiving unién wages or other

-

OOP Pea

Seine sat id Si fo Gut

‘

2

union benefits.” ‘The carrying of signs and banners,

_-no less than the raising of a flag, is a natural and ap-

propriate means of Conveying information on matters

of public concern. ... [PJublicizing the facts of a

labor dispute in a peaceful way through appropriate _

_ means, whether by pamphlet, by word of mouth or by

banner, must now be regarded as within that liberty

of communication which is secured to every person by

the Fourteenth Amendment against. abridgment by

a state.’”’ Carlson v. California, 310 U.S. 106; 112-113.

A state court injunction which prohibits.that picketitig

therefore prima facie clashes with freedom of expres- _

sion and hence requires the proponents of thé ban to

justify the suppression. But respondents do not éon-

front the issues which this clash poses. For, on the

- analytical level, they do no more than play variations

on the conclusory theme of trespass, and, on the factual

level, they indulge the fiction that the picketing that

was prohibited was ieiieneaecd obstructive rather than 7

peaceful.

1. Because the picketing was conducted on privately-

owned but publicly-used property, the courts below

characterized ‘it as a trespass, and respondents would

justify prohibition of the picketing in reliance on that ~

bare classification (res. br. pp. 23-24, 52). To affix

the local label of trespass to the enjoined conduct does

not answer the question whether the State has impaired

_ freedoms protected by the Federal Constitution or

taken in hand activity that Congress has by statute pre-

empted or safeguarded. ‘‘Title to property as defined

by State law controls it al relations ;~it cannot

control issues of civil liberties.... And similarly the.

technical distinctions on which a | finding of ‘trespass’ -

-so often depends are too tenuous to control: decisions —

4

; . portant national labor policy.”’ Rabouin v. N.L.R. i

' - Garmon, 359 U.S. 236, 244 and n. 3.

se ee eee

regarding the scope of the vital liberties guaranteed

by the Constitution.”” Mr. Justice Frankfurter con-

curring in Marsh v. Alabama, 326 U.S. 501, 511. And

so, as this Court held in the latter case, ‘determination

of the issue of ‘dedication’ does not decide the question

under the Federal Constitution here eaiecoell (id. at

505, n. 2).

The same is true of the question under the National ~

Labor Relations Act. ‘‘Nothing in the statute’s back-

ground, history, terms or purposes indicates its scope -

is to be limited by such varying local cones:ptions, either

statutory or judicial, or that it is to be administered in

accordance with whatever different standards the re- ©

spective states may see fit to adopt for the disposition . |

of unrelated local problems. Consequently, . . . ‘the 4

federal law’must prevail no matter what name is given

to the interest or right by state law.’’’ N.L.R.B. v.

Hearst Publications, 322 U.S. 111, 123-124. The ‘“‘va-

garies of state rules of law may not override provisions

of.a federal act geared to the effectuation of an im-

.

TITERS EEN. IMENT Me MOLE

’

195 F.2d 906, 910 (CA. 2).. ie: er and eve

fore superseding federal power cannot be curtailed by .

the state even though the ground of intervention be

different than that on which federal supremacy has |

been exercised.’”? Weber v. Anheuser Busch, 348 US.

468, 480; see also, Local 24, Teamsters v. Oliver, 358

U.S.. 283, 297; San Diego Bldg. Trades Council v.

‘In short, ‘‘a state cannot foreclose the exercise of

_ constitutional [or other federal] rights by mere labels.”’

N.A.A.C.P. v. Button, 371 U.S. 415, 429. Here peace-

ful picketing was conducted on privately-owned but

publicly-used property; the occasion for the picketing

was the disfavored labor policy practiced by the store

in front of which the picketing was conducted; the

message which the picketing imparted publicized the

store’s disapproved non-union status; and the vicinity

of the store was the natural and effective place to com-

municate that message. pertaining to that store and

its labor policy. And so, the picketing was peaceful;

the place was public; and the nexus of the picketing

to that public place was direct in relationship to the

originating cause of the picketing, the disfavored con-

dition at which the picketing was aimed, and the audi-

ence that it was designed to reach. This was in pristine

form peaceful persuasion through picketing and it

takes more than the cry iain ‘to property” to

justify its ban. Th

2. A variant on the trespass theme departs 1 re-

liance on bare title to property as ‘the identifying at-

tribute of the trespass, and invokes instead avoidance

of violence and preservation of domestic peace as the

- ends served by curbing ‘trespass (res. br. pp. 57-58;

alleen Dei AMPS one

ARF br. pp. 8-9, 21-24). -But what the injunction in

this case curbs as trespass is peaceful picketing. And. -

it has been a very long time—and rarely even in the.

distant past—since it has been said that a risk .of

violence inheres in peaceful picketing and its outright

ban is therefore justified on that account, This Court

has upheld, only once and over vigorous dissent, a ban —

of peaceful picketing because it was enmeshed in a | 7

pattern of actual violence which gave the picketing a

coercive effect whereby it would operate destructively

as force and intimidation. Milk Wagon Drivers Union

v. Meadowmoor Dairies, 312 U.S. 287.- This ban of

future peaceful picketing because of its past enmesh-

Merit in violence is highly éxceptional. The usual

ee Et a Ce

5

course, even when picketing is marred by violence, is

to prohibit the violence. but permit - the picketing:

Youngdahl v. Rainfair, 355 U.S. 131, 139-140; U.M W.

v. Gibbs, 383 U.S. 715, 729-732. But neither approach

even comes toe the fore unless there is actual violence.

As here, therefore, when there is nothing- but peaceful

picketing, with no violence attendant upon its conduct,

this Court has never s&rictioned its ban because of an_

unmaterialized risk of violenée supposedly inherent in

all picketing at all times and everywhere. It has, in-

deed, expressly rejected just this view. Thornhill v.

Alabama, 310 U.S. 88, 105. It is late in the day to

resurrect the argument now. In our industrial society

peaceful picketing has long since been identified with

unimpeachable orthodoxy as ‘‘fair persuasion.” ?

“In short, what respondents come-down to saying is

that peaceful picketing on publicly-used but privately- .

owned land is a trespass, that trespass is prohibitable —

in order to prevent violence, and that therefore peace-

ful picketing may be banned as a means of preserving

domestie peace. This argument begins with a question- ©

begging conclusory characterization, fills that abstrac-

tion with a content foreign to the actual conduct which

it is supposed to classify, and ends-with a conclusion |

which incorporates a faulty premise and an erroneous

- deduction from it. Concretely stated, banning peace-

ful picketing on publicly-used but privately-owned

_ property serves whatever interest there may be in, bare

dominion over property but has nothing to do with ©

preventing violence. It takes méré than respondents’

illogical shift from bare title to violence to justify the

suppression of peaceful picketing.

1 Restatement, Torts, § 779 (1939).

—@

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aa is 3 ied) i en Re Be tpt to witb ss m J inact MpilalgaS sath :

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6

3. The main burden of respondents’ defense of the

ban of picketing at the store’s premises is based on the

view that the picketing, said to have been conducted

by thirteen pickets walking four abreast, physically

a

Resins Woda ds aes

obstructed access. to the pick-up zone and. seriously

_- impeded its normal functioning (res. br. pp. 3, 11, 12,

16,17, 56). This version is foreign to the record, in .

conflict with the findings, and at odds with the rationale

adopted by the courts below to support the injunction.

The Court of Common Pleas found that (R. 89-90) :

(7) Commencing on December 17, 1965 defend-

- ant union through its representatives, none of

- whom are employees of either plaintiff, engaged

_ with continuity in the following acts of peaeung

_ on the Mall premises, inter alia:

(a) small groups of men and women wearing

placards. reading ‘‘Weis Mkt is Non-Union these

employees are not receiving union wages or other

union benefits’? walked baek and forth in front

of the Weis supermarket, more particularly in the

pick-up zone adjacent to the covered porch [em-

phasis supplied] ;

(b) occasional picketing as above described has

taken _ on the covered porch itself.

* * + —~

(8) While such picketing has been persisted in

and may have infrequently ¢. used temporary con-

gestion near the supermarket entrances or sporadic

se of the flow of vehicles in the pick up

ile the pickets refused a request by.

~ the Assistant “General Superintendent for Weis

. Markets to moveoff the Mall proper, the picketing.

has been: peaceful and unaccompanied by either

oral threats or — violence.

The Court of Common Bkas thus flatly found re

“the picketing has been peaceful and unaccompanied *

by either oral threats or actual violence.’”’ “This un-

equivocal finding was introduced by the pale qualifica--

tion that: the picketing “may have infrequently caused

temporary congestion . ... or sporadic stoppage of °

the flow of vehicles in the pick up zone...” (emphasis .

supplied). To find that picketing ‘may have’’ caused

a condition is very far from finding that it did; and

- to find that the condition that ‘‘may have’’ been caused

was brought about ‘infrequently’? and was “‘tem-

porary’’ or ‘‘sporadic”’ is very far from finding that

it had a meaningful duration, much less that it con-

tinued uninterruptedly. ip

ETO EES LAO REN OER ET ERR! IER GR IS NTE aR

On appeal, the Supreme Court of Pennsylvania was

emphatic that the picketing at issue was peaceful. It -

described the picketing as ‘‘concededly peaceful in

nature”? (R. 101); it observed that the ‘‘court: below.

found, and it is established by the evidence, that the

picketing was peaceful'in nature” (R. 102); and it

sustained thé injunction ‘‘even though [the workmen]. f

engaged in picketing of a peaceful nature” (R. 106). 7

_ The Court of Common. Pleas had enjoined the picket- 3

ing because it constituted a trespass and was designed

_ in part to coerce union membership (pet. br. pp. 7-8), -

and the Supreme Court of Pennsylvania upheld the

injunction on the trespass ground alone (pet. br. pp.

9-10). Neither court, however, acted in any wise upon -

the view that the picketing was in any degree physically. =f

obstructive. aa: ."

PeeoR nny

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‘Respondents thus place their main reliance upon a

mythical view of the picketing.? But even if the picket-

ing were physically obstructive, all that respondents

would be able-to demonstrate. on that premise would be

a reason for limiting the number of pickets and de-—

lineating ‘the particular places in the vicinity of the

store at which they could walk. It would not justify -

the prohibition of all picketing at the store’s premises.

- As a matter of constitutional right (Thornhill v. Ala-

bama, 310 U.S. 88, 105-106), as well as of federal statu-

' tory protection (Youngdahl v. Rainfair, 355 U.S. 131,

137-140; United Mine Workers v. Gibbs, 383 U S. 715,

729-732), an injunction must be narrowly drawn to

reach only the physically obstructive aspects of the

picketing, leaving its continuance at the situs of the

2 Illustrative is respondents’ claim that thirteen pickets walked

four abreast from December 17, 1965, when the picketing began,-

until December 27, 1965, when the picketing was enjoined ex

parte. Respondents’ own witness testified, however, that thir-

teen persons picketed only ‘‘on the night of December 21st, a |

Tuesday night”’, and walked on that night ‘‘Two [abreast], and

sometimes they would go into 3 or 4’’ (R. 32; see also, R. 47).

The same witness placed the average number of pickets at “6

and-7’’ (R. 39). The pick-up zone at which the workmen pri-

marily picketed was 4-5 feet in width and 30-40 feet in length

(R. 55, 101, n. 2). Parts (ce), (4), (e), and (f£) of june-

tion are in terms addressed to physically: Shuizuctive picketing

(R. 3, 20-21), but that injunction was issued ex parte (R.~102),

and was continued in effect. unchanged after an evidentiary

hearing without advertence to the lack of correspondence between

parts (c), (d), (e), and (f) of the injunction and the record

(R.. 99-100). The casualness with which these parts of the

? injunction were entered and continued is illustrated by the fact

that the blank space in part (c) of the injunction specifying thé -

number of pickets has never been filled in (R. 3, 20).. We need

- . hardly add that in adjudicating ‘‘a claim of constitutionally pro-

.tected. right’’ this Court’s responsibility is * ‘to make an inde-

pendent examination of the whole record.’ ”’ Cox v. Louisiana,

379 U.S. 536, 545, n. 8.

TF.

i

*

dispute otherwise unmolested. The situation is iden-

tical to that .which would obtain if the Weis store

_ fronted on a municipally-owned street. In that event, .

physically obstructive picketing would be controlled by .

limiting the number and location of the pickets ‘in front

" of the store.to allow unimpeded access, but unobstruc-

tive picketing in reasonable numbers at the store’s

premises would be ‘permitted. The situation is'no dif-

* ferent because the Weis store fronts on-a publicly-used . .

but. privately-owned street rather than on a publicly-

used but -municipally-owned street. Indeed, in this

case, as would be true on munieipally-owned ground,

the ideal appropriate place to picket would be on the

sidewalk in front of the Weis store, thereby eliminating

any question of ne of auto traffic-flow = the

pick-up zone.”

4. We return in the end to the iacutii which this

ease presents. May a State prohibit peaceful picket-

ing at the premises of a store within a shopping ¢ center.

because the property is privately-owned althoygh pub-

- liely-used? It is that issue which must be faced and

_ which respondents do not confront. ae

3 Part of the sidewalk in front of the Weis store is overhung

by: a roof, and therefore called an “open but covered por

(R. 88, res. br. p. 4), which presumably is designed. to serve the

sanie function as an awning. Based on_ the fact that picketing

on the sidewalk was ‘‘océasional’’ (R: 89), the court below stated

that, ‘‘We do not construe the Union’s position to be that picket-

ing on the porch of the Weis’ property did not constitute a

' trespass’’ (R. 103, n. 5). The inference of the court below as

to the Union’s position is mistaken. There is no reason to dis-

. tinguish for trespass purposes between a publicly-used sidewalk,

a publicly-used pick-up zone, or a — parking lot

within a shopping center. :

&

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_- divests the state court of subject matter jurisdiction, oo

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a fiers ergs Oe Se ee Peay ASH bade

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: IL 1 RSPONDENTs UNTENAME POSITION THAT THE

MPTION QUESTION IS NOT PROPERLY BE- .

FORE THIS COURT.

" Respondents contend that the question of federal

preemption was not properly pursued by petitioners on

appeal before the Pennsylvania Supreme Court, and

therefore may not be entertained by this Court (res..

br. p. 29). The short answer is that, as preemption

the issue was sufficiently raiséd before the court below.

te comply with state standards for tendering a jurisdie¢-

tional question, and that, even if it were not, this Court

must décide a jurisdictional question whether or not.

raised below.

‘1. As respondents ‘conceded . in ‘their opposition to

certiorari (p. 9), the ‘‘Petitioners in their ‘Motion to

_ Dissolve or Modify- Preliminary Injunction’ before the

Court of. Comnion Pleas did raise the issue of preemp-

tion arguing that the complained of activity was re-

)*

- moved from the sphere of state action by virtue of the

Labor Management Relations Act.’’ The conceded ex-"

plicit tender of the preemption question to the trial

court was incorporated in the printed record on appeal

in the precise form that it had been raised at the nisi

prius level (R. 26). Furthermore, in addition to its in-

clusion in the record on appeal, preemption was an ex-

press _alternative ground articulated in the dissenting

opixtion below to support reversal (R. 111). And the

view that preemption did not apply was forcefully

‘argued by respondents themselves in their brief below.*

In reliance on this Court’s reservation of the question .

in Meat Cutters v. Fairlawn Meats, 353 U.S. 20, and .

7

. Repellents have lodged this brief with the Clerk of the

Court.

——

.

\

:

invoking the concurring opinion in Freeman vy. Retail . |

Clerks Union, Local No. 1207, 58 Wash. 2d 426, 363

P. 2d 803, respondents urged that the power of the

lower court to issue an injunction addressed to trespass

had - not been preempted (res. br. below pp. 17-19). -

They similarly cited and quoted People v. Goduto, 21

Ill. 2d 605, 610, 174 N.E. 2d 385, cert. denied, 368 U.S.

927, and Hood v. Stafford, 213 Tenn. 684, 378 S.W..-

2d 766, to sustain state power to regulate picketing. as

a trespass notwithstanding preemption (1d. at 20-22).

And they argued “‘tacit approval”’ by this Court, said

to be inferable from this Court’s denial of certiorari in.

Goduto, urging that the ‘“‘Supreme Court has never:

hesitated to grant certiorari when it believes a state’

‘entered a forbidden area of labor gelations. See e. g.

San Diego Building Trades. Council v. Garmon, 359

U.S. 236 ...; Local 174, Teamsters v. Lucas Flour Co.,.

369 U.S. 95. . -; Plumber’s Union v. Borden, 373 U. S.

690 . ...; Iron Workers v. Perko, 373 U.S. 701 .

_ (td. at 21). The preemption question was thavitine

plainly before the court below. |

2. In these circumstances only court that would not

- see could not see. The Pennsylvania Supreme Court } .

is not that sightless court whith puts on procedural” ;

binders to shut from view what all men miust perceive.

. [W]e cannot close our eyes’’, it says, toa “clearly

disclosed”? defect.’ Even if not properly raised, it 7

notices ‘‘a vital or fundamental error’’,’ such as the

illegality of a business * or the discretionary avail-

5 McCann v. Philadelphia Foirfaz Corp., 344 Pa. 636, (26 A2d

540, 542 ( contributory negligence).

* 9 Standard Pennsylvania Practice 339 (rev. ed. 1962).

* Tucker v. Bienenstock, 310 Pa. 254, 165 A. 247, 249.

oo

eee eee eee

12 | 5 > Pane

ability of the declaratory judgment Temedy.*. More

Se to the point, whatever may be -said of important but

~~non-jurisdictional errors, the Pennsylvania Supreme

Court lways considers questions of subject matter ~

jurisdiction-although not embraced by the statement of:

4. + guestions invelve otherwjse suggested by the par-

4 ties. As it states, ‘‘Objecti is te jurisdiction over the

. subject matter at issue have been-considered by this

- * Court even where the question was not presented to

the court below or initially raised on appeal.””® Over

| and again it has noticed and decided.as a matter’ of

_» eourse questions of subject matter. jurisdiction im” . ~

| perfectlyZaised or not raised at all."° In conformity

‘ * P

int the Aiadiel shi seat ua et ee ee

.

8 Taylor v. Haverford Tp., 299° Pa. 402, 149 A. 689,°641; State

Farm Mutual Automobdilé Ins. Co.. v. Semple, 407 Pa. 572, 180

i A.2d 925, 927. .

°'In re Application of Rita T. Chambers, 399 Pa. 53, 159 A.2d

* 684,687. s ‘

; 10 McCoach v. City of Philadelphia, 273 Pa. 317, 1M A. 71, .73

.. > -(True, the question upon which we decide this was hot

| paised in the lower court, nor by counsel here; but, as it goes to

the jurisdiction“to grant .the relief sought, we cannot-~ ignore

it.’?); Magel*v. Springs, 338 Pa. 452, 12 A.2d 558, 559 (‘* While

this objection was not made in the court. below, the point. is

- jurisdictional and should be ‘noticed here.’’); In -ré Gilbert’s

_. Estate, 350 Pa. 13, 38 A.2d. 27% 279 (‘“We note that the question,

of ‘jurisdiction was not presentgd to the. . . court below... .

'We must, however, consider it.’’); 9 ‘Standard Pennsylvania

Practice 340 (rev. ed. 1962) (‘‘A question which goes to the

jurisdiction of the lower court. to grant the relief sought, however,

cannot. be ignored on appeal-even though it was not raised by

counsel: on the appeal.’’); Id. at 362-363 (‘‘ Jurisdiction of, the

subject matter carinot be conferred by estoppel, consent, or

waiver. .An objection of want of* jurisdiction over the subject

matter may even be raised for the first time on appeal.’’). And

see, Appeal of Borough of Schuylkill Haven, 179 Pa. Super.

508, 118 A.2d 242,-248, (‘The question ef jurisdietion of the .

court of quarter sessions to make the order from which this

appeal is taken would be considered by this Court althongh not _

f presented to, the court below or initially raised on ay cates Ss Fs

Oe Oe et a

Se: OURS tet ISI la oA cb cit a bw

13

with that practice it ‘has considered the question of’ the

. lack of jurisdiction of the Pennsylvania Labor Rela-

tions Board by reason of the exclusive jurisdiction of

the National Labor Relations Board,ilthough the ques-

tion was not raised until after argument before the

- Pennsylvania Supreme, Court," or not: raised oy

the State Board.” ~ 2:

There is, acoirdingly, no reasonably tenable basis ©

for imputing to thé court below a failure to consider the

preemption question because of claimed insufficient ad-

hérence to state procedural rules. .The preemption

question was in plain view of the court below and it .

regularly considers and wnnry jurisdictional issues .

even if inartistically presented or not raised at all by |

the parties but noted.sua sponte. Furthermore, in

these circumstances, had the court below invoked a

procedural bar as the reason for declining to ¢ nsider

‘the preemption question, the assertion of such a ground

- would be, ‘‘withou y fair or substantial support’’ in

_ state rules® (Ward v..Love. County, 253 U.S. 17, 22),

and therefore would ‘not: constitute an adequate non- .

federal basis of decision (Staub v. ‘Bacley, 355 U.S.

- 318, 318-320), There is, hence, no state procedure! 2 im-

- pediment to review here. an

3. But even if the preemption neeiiton were invufii-

ciently raised below, and that defect were the reason

‘actually and justifiably invoked by the court below as.

the basis for not considering the question, review here

_ would not be barred. Preemption goes’ to the power

of the statercourt over the subject matter of the contro-

11 Pittsburgh iis Case, 357 Pa. 379, 54 A2d 891, ex-

plained in Pennsylvania Labor ee Board. v. Frank, 8.

Pa. 537, 67 A.2d 78, 81. |

13 2 Pennsylvania Labor Relations Board v. Peaks 362 Pa. 537, zs

67 A. 2d 78, 81.

ts dw 4 —

‘i

14

versy (In re Green, 369 U.S. 689), and is therefore

jurisdictional.- It ‘involves the fundamental question |

of whether the... [state] courts had any power what-

ever to adjudicate the dispute betweén the parties.

Congress. has invested the. National Labor Relations

Board with the exclusive power to adjudicate conduct

arguably protécted or prohibited by the National Labor

Rélattons Act.” Liner v.. Safco, 379 U.S. 301, 306.

-(emphasis supplied). ‘“‘Of course a question of juris-

__ diction cannot be waived. Jurisdiction should affirma-_

tively appear, and the question may be raised at any ~

time.”? Gainesville v. Brown-Cummer Investment Co.,

977 U.S. 54, 59. This Court has ‘sua sponte passed

‘upon a state court’s jurisdiction although it- had. been

- eoriceded below and not questioned in this Court. Sea-

boardAir Line Co. v. Daniel, 333 WS. 118, 122-123.

It is this Court’s unbroken practice to consider and

— decide a jurisdictional question even if not raised below

or here. “In keeping with this practice this Court »:

13 Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 209 ;

‘Kesler -v. Department of Public Safety, 369 U.S. 153, 155;

McGrath v. Kristensen, 340 U.S. 162, 167; Mitchell v. Maurer,

993 U.S. 237, 244; Matson Navigation Co. v. United States, 284

U.S. 352, 359. See also, Provident Tradesmens Bank & Trust

sponte’ raised an indispensable party point, and therefore a

jurisdictional defect, and where this Court revérsed, not because -

the Court of Appeals should not have raised the question, but

bece eit decided it erroneously. Respondents’ reliance (br.

pp. 32:33) on C.I.0. v. McAdory, 325 U.S. 472, 477, is misplaced.

McAdory presented a question of conflict of a state statute with

the National Labor Relations Act. A conflict question presupposes

the power of a State to act, but requires that it act compatibly.

with federal standards (Nash .v. Florida Industrial Commission,

emption question, which if well-taken deprives the State of any

. .power to act, whether it would act harmoniously or inconsistently

é

with federal standards.

wy

.

t«

8 6 nee Op ee Land it eet en

* examined the jurisdiction of a court: to enjoin action

of the National Labor Relations Board in a repre-

_ sentation proceeding although “‘no challenge was made

by -the parties” to, judicial intercession. cCulloch

v. Sociedad Nacional De Marineros De H onduras, 372:

U.S. 10, 16. Accordingly, as preemption goes to the -

subject matter ‘jurisdiction of the state court, there

i8 on any hypothesis no tenable basis fot barring re-

view of that question here.“

4. The reason for reaching the preemption quéstion

is emphasized by respondents’ virtual confession that

’ the injunction could-not survive were the power to issue

it examined under preemption standards. For} while

urging that the picketing is not arguably yrohibited

by the National Labor Relations Act, respondents are

eloquently silent upon the essential companion ake

- into whether the picketing is arguably protected.

do not treat .at all with the protected branch o the

conduct, and of course preemption independently ap-

plies whether the conduct which a State seeks to take

_in hand is either arguably protected or arguably pro-

hibited. Indeed, since respondents ‘do not even suggest

that, the picketing ‘is not fated protected, there is

°

od

: 144 As the Wisconsin Supreme Court has held, in rejecting the

claim that the issue of federal preemption of state prohibition of

peaceful picketing, within a shopping center could not be con- |

sidered because, not raised below, ‘‘Federal pre-emption deprives

the state courts of subject matter jurisdiction. The question of

whether the circuit court has subject matter jurisdiction to de-

termine a controyersy a: be raised. at any time, including for .

the first time jon ‘appeal . 5% Thus, it is permissible for the -

appellants to, raise the issue 2 of federal pre-emption for the first ,

time in this court.”? Moreland Corp. v. Retail Store Employees

Union Local No. 444, 16 Wis. 2d 499, 114 N.W. 2d 876, 878.

' i |

ee

oe ee ad ee eee

16

,

patently present here “the greatest threat against

- which the Garmon doctrine guards, a State’s prohibi-

tion of activity fhat the Act indicates must remain

unhampered.”’ Hanna Mining Co. -v. i * 382

U.S. 181, 193. Pees

| Furthermore, respondents’ claim that the picketing

4s not arguably prohibited is’ eurious in view of the

fact that one ground on which the Court of Common

issuance of the injunction was ‘that~the picketing,

ft

Pleas, but.not-the.court below (R. 106), etn

in this case is being conducted . . . for 4n unlawful .

purpose,. that is, it +:-. 1s designed, at least in part,

to pressure Weis Markets, Ine. to compel its employees

adjudication of the controversy within the exclusive

‘power of the National Labor Relations Board. Local

No, 438 Construction Union v. Curry, 371 U.S. 542. .

re bership.

to join a union” (R. 99). This conclusion, to say

the least, spells out au arguable eviolation of the Na- ~

tional Labor Relations Act, and. consequently places

S.

It is, therefore, more than a little difficult to urge that

the picketing at issue in this case is not even arguably

prohibited when one judge on this very record has

concluded that its purpose was to coerce union mem-

The activity in this case is accordingly within the

heartland of the NLRB’s regulatory reach. The pur-

pose of -preemption is to avert the danger of state

interference with national policy. Hence, ‘‘this is

particularly a case in which ‘we should be astute to .

avoid hindrances in the way of taking’ up... - [the

ae

oe

Se nee migighs Materia adie

a ate % oa X

: . ; 4 L ° T 17 es Pa

preemption questi os Liner v. Ji ne 375 U. 8. 301, :

aie

Raga submitted,

LESTER " ASHER :

| 228 North LaSalle Street *

% _ * © Qhieago, Illinois 60601

‘ BERNARD DUNAU |

912 Dupont Circle Building

Washington, D. C. 20036

“- , Nee ) Attorneys for Petitioners

- March 1968. ae | . {

|