Amicus Curiae Brief — Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co.

a

SuMMARY OF ARGUMENT eeeee : eeeee weceeees : eeeee sececccescscssescscsees eetee 2

ARGUMENT ........00. Ne ie al oe 7

4

_ The legality of ical picketing growing out

of a dispute under the Railway Labor Act is

governed in its entirety by federal law which |

préeempts all state regulation of such conduct

) ConcLusIon coepevccccoccesacccocese SCS SEE SEES ESSE EEEEES : eseceees 32

Cases: 4: ge Bs |

| Amalgamated Assoc. S.E.R & M.C.E. v. Wisconsin

Employment Relations *Board, 340 US. 383 .

>» GHEY “snnnicertncsiios jsiindiipniahiciailiiiiiligis iene _—_— 18-19

American Ship Bldg. Co. v. National Labor. Rela-

tions Board, 380 U.S. 300 (1965) scsrsussnsssense 16, 24

— Atlantic Coast Lime R. Co..v. Brotherhood of R.

Trainmen, 385 U.S. 20°(1966) sscsesssnsessesineesnse 11-12

Brotherhood of R. Traimmen vy. Atlantic Coast

Lime R. Co., 361 F.2d 649 (C.A. 5th Cir., 1966) 10-

Brotherhood of R, T. v. Chicago R.41.R. 0o., 353

oe ey, pealeliomaiicat 3,13

Carrier Corp. v. National res Relations Bosra,

©. 811 F.2d 135 (C.A. 2nd Cir., 1962) ......ceccsesersseesses 27-28

-Dice v. Akron, Canton & Y oungstoun R.R., 342

sx, US. 359 (1952). ceseeseseeeen a.

Electrical Workers v. National hae Retations

Board (General Electric Co. -), 366 U.S. 667—

(1961) a spit chcduniiasbanai 26, 28, 30,31 .

“Hilt v. Florida, 325 US. 538 (1944) icin iiashoens . 7,8

Houston Contractors Assn. v. National Labor Re-

‘lations Board, 357 F.2d 182 (C.A. 5th Cjr., 1966)

- affirmed on this point 386 U.S. 664 (1967) iiiaans ~-

. Houston, Edw T. R. Co. v. . United States, 234

(+ WS. BAD (1914) een : —

In Re Debs 158 U.S. 564 (1895) .. a

International Union UAW v. O’Brien, 339 US. 453

Ria = 448 .

International Union UAW v. ‘Wisconsin sarge :

ment Relgtions Board ne enn, a

©

_ U8. 245 (1947) . : 4,19, 20, 21,22

Jacksonville Terminal Co. ¥. Florida East Coast

Ry. Co., 363 F.2d 216 (C.A. 5th Cir., 1966), cer- -

tiorart denied, 385 U.S. 950 ... 9

Liner-v. Jafco, 375 U.S. 301 (1964) os. 16

- Local No. 438 ¥. Curry, 371 US. 542 (1963) sihiestoen _

Locomotive Engineers v. Baltimore & Ohw R. Co. oe.

872 U.S. 284.(1963) FOF ES LC 3y17, 26

Machinists v. Central Airlines; 372 U.S. 682 (1963) 15°

_ Motor Coach Employees v. Missouri, 374 U.S. 74

(1963) ..... ; seiitines MeADNe, 18.

Nash v. Florida Industrial Commission, 389 U.S,

- 285 (1967). 7 2 at Pi WNS 7

‘National Labor Relations Board v. American Nat.

» Tis: Co., 843 US, 895 (1952) cevrrssnssseinnireecn’ Shy 17

National Labor Relations Board \ v. Drivers Local

Union (Curtis Bros.), 362 U.S. 274.(1960) ........ 4,19

National Labor Relations Board v. Insurance

- 22-23, 4

of

ae)

Agents International, 361 Us. 447 (1960) on . 4,5,17,.

. |

/ 1? |

‘| e . |

| ; . . "? Page

National Labbr Relations Board v. Jones & Laugh

Vim 8. Corp,, 301 U.S. 1-(1937) . +. ae

. National: or Relations Board v. Peter Cailler

Kohler Chocolates Co., 130 F.2d 503 (C.A. 2nd

Cir., 1942) sabe » 20-21

National: Woodwork Mfrs. ‘Asin. v. National Labor |

Relations Board, 386 U.S. 612 (1967) serves ae,

"Railroad Telegraphers_v. Chicago Ws WB. 00; |.

B62 U.S. 330 (1960) “Fp sscsesorersosnssesen ‘8, 13, 23, 26

Railroad Tramsfer Service v. Chicago; 386 U.S 351 Ries

(1967) ..... 8

Railay 1 Employees v. Florida E. CR. 02. 364 US.

238, 244 (1966). ‘ail 8, 13,16, 17

Sailors Union of The Pacific. “tebe Drydock Co. ),

92 NLRB 547 (1950). .scisysissrossenn 31.

‘ Sam Diego Building.Trades Corneil v. Garmon, 359 ©

US. 236 (1059) .. eS

Seafarers. Union Vv. National Labor Relations

Board, 265 F'2d 585 (C.A. D.C, Cir., 1959) 5... 31.

Sola Electric Co. v. Jefferson Evectric Co., 317 v. s.

173 (1942) . speeineastnnen J 8

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

95 (1962) ..: ‘ » 15, 24-25

Teamsters Union v. Morton, 377 U. s. 352 (1964) .. 5

Texas & N.O. R: Co. v. Brotherhood Ry. & SS.

Clerks, 281 U:S. 548 (1930) , ‘8

Texas & P.R. Co. v. Abilene Cotton Oii Co, 204.

U.S. 426 (1907) sermeeeren re oF

Textile. Workers v. Lincoln Mis, 353 US. 448

(96) aiacnis soidbocalaii ile,

ay

a

Srarores:

Page |

-Umon ‘Mreborie Co. v. Jensen, 322 vs. 202 Roe

(1944) . a a

Umited States v. Hutcheson, 312 U.S. 219 (1941) . 3, 14-15

- United Steelworkers v. National Labor Relations . age

- Board (Carrier Corp. ), 376 U.S. 492 (1964)..6, 28-30, 31 -

ae oungdahl v. Rainfair, 355 U8. 181 (1957) cance 5, 27

x ° {

Clayton Act, 38 Stat. 731, 15 U.S.C. $12 et seg. <. 3, 12, 16 | | .

Labor Management Relations Act, 61 Stat. 140, 29 a )

U.S.C. § 173 et seq sovsdovncencunssconsecssunsessunsecceeee .5, 16, 20, 24°"

National Labor Rélations Act, asgmended, 61 Stat. ?

140, 73 Stat. 519, 29 TB.C. $151 et COg. scessessesesees 2,3,4, ©

° . 5, 7, 18, 16,17, 19, 20,21, 26.

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

Aa i chostecusblansasisceatiniies. sesssneteee By 12, 18, 14, 16

Railway tae Aik, 8 us acinisiind: 44 Stat.577,45

— US.C. $151 et seq. ... + Be3,9,8, 9, 12, 18, 14, 16, 17, 21, 26

‘

MIsSCELLANEOUS:~

Garrison, The Railroad porary bert: 4.

Unique Administrative cecil 46 Yale L.J.,

567-569 (1937) ....ccscsceccoses <—

Legislative History of the Labor OE Re- .

lations Act, 1947 (G4 O.P. 1948) ......50: 16-17

e. Cr,

ees

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OCTOBER TERM, 198.

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- BROTHERHOOD OF R&ALROAD TRAINMEN, ET AL.,

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- Petitioners, s | ’

v. oy he P a mh : oe }

ON A WRIT OF CERTIORARI TOTHE | .

DISTRIOT COURT OF APPEAL oF FLORIDA, :

.FIRST DISTRIOT ¢ - al

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-_ BRIEF FORTHE =-——i iw Sg

___ AMERICAN FEDERATION OF LABOR ._-

AND CONGRESS: OF INDUSTRIAL RIAL ORGANIZATIONS |

‘AS AMIOUS CURIAE =

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This brief emicus,in support of the position of the-Peti-

desiets is filed by, the American Federation of Labor:and .

Congress of Industrial Organi%ations (AFL-CIO) with the

consent of the parties, as agen for in Bule 42 of the «

Bules of this Court. sor ah a a

The AFL-CIO is a federatiorof one undvedeand twenty-

seven national and international unions having a® total

membership of approximately thirteen” million working -

men and-women. Its dffiliates include two of the three :

‘ Petitioners 4 im the instant case and many other unions rep-

é Ay 9

resenting railroad and aizline workers as well. Neverthe-_

less, the Federation has rarely filed briefs amicus-in cages

’ . involving the Railway Labor Act, as amended, 44 Stat. 577,

45 US.C., §151 et seq. recognizing that they normally pre-

- sent . special "problems growing out of a ‘‘state within a

state .. .-[having] its own customs and its own vocabulary

[which] lives: according to rules of its own making.”’ Gar-

rison, Fhe Railroad Adjustment Board: A Unique Admin. .

istrative Agency,-46‘Yale L.J., 567-569 (1937). However, it

is our belief that the instant case turns on basic proposi-

tions of-law already fully: developed by this Court in deci- ©

sions construing the nature and effect of the National Labor

Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29

U.S.C. §151 et seg. Sincethe AFL-CIO has beer intimately

associated with the development of these principles, we -.

venture an expression of our. views as to the. correct’ resolu-

tion of the problem presented here in light of ~ NLRA

law declared by this. Court.

aN

. |. SUMMARY OF ARGUMENT.

The basic quegtion presented by the instarit case is: Can

peaceful picketing i in furtherance of the right of self-help

during a major dispute under the Railway Labor Act, which

takes place at a situs used by both the struck railroad and

_ other carriers, be limited pursuant to state law to activity ~

directed to the striker replacement employees of the struck

-* @arrier, thereby prohibiting conduct designed to appeal to

employees of other carriers who.are facilitating the day-

to-day business of the struck carrier -by making deliveries —

to and pickups from it, at the situs of.the picketing? In

light of the principles developed below it is clear that the

answer to this question must be in the negative and that

the injunction entered below must be disgolved.

- 1. In Motor Coach Employees v. Missouri, 374 US. 74, a

- 82 (1963) this Court stated that ‘fcolleetive bargaining with

' a right to strike at its core, "is ,the essence of th federal

scheme’’ of the National Labor Relations Act. While the

3

NLRA and the RLA differ i in many particulars, i iti is eutively

accurate to say that in essence the RLA is a system for

ordering labor relations based on collective bargaining,

mediation, fact finding and voluntary arbitration with. the

rightto strike at its core, see Railway Employees v. Florida

E.C.R. Co., 384 U.S. 238, 244 (1966). Congress has under-

lined its policy of safeguarding the right to. strike after

- the other procedureS*of*the RLA have been exhausted by ~

making the anti-injunction policy of the Norris-LaGuardia |

Act applicable to railroad controversies to the extent that

its purposes ‘‘are reconcilable’’ with those of the RLA,

Brotherhood of R.T. v. Chicago R. & I. R. Co., 353 U.S. 30,

40 (1957). Ard the decisions. under Norris‘LaGuardia

‘establish that all peaceful picketing, whether primary or

' " secondary, which grows out of “controversies concerning

terms or conditions of employment’? (29 U.S.C. §113(c))

was designedly left unregulated by Congress, not only from

injunctive rélief by the federal courts as its bare terms

might indicate, but from all regulations, see, U nited States

_ v. Hutcheson, 312 U.S. 219 (1941). The plan of the RLA, the ,

Norris-La@Quardia Act and the Clayton Act thus indicates

that Congress has found regulation of the timing of self-

help to be sufficient to accomplish its purposes in regulating

the labor relations of the railroad industry. Congress has, .

therefore, deliberately refrained from embarking on the

detailed regulation of economic weapons found-in Section 8

of the NLRA, preferring instead to give the parties a free

hand in self-help unless their activities contravene a basic

command of the RLA.

, The same conclusion follows from the structure of the

-RLA dlone. In enacting the RLA, the Government has not

undertaken ‘‘governmental regulation of wages, hours or

working conditions. Instead, it seeks to provide a means.

by which agreement may be.reached with respect to-them,’’

Locomotive Engineers v. Baltimo¥e & Ohio R. Co., 372

U.S. 284, 289-290 (1963), cf., National. Labor Relations

F

Tee )8=—F

° : | ; i 4

. Board ¥. American Nat. Ins. Co., 343° US. 395, 402 (1952).

From the first, it has been recognized that: this federal sys- -

tem of labor relations, based on frée collective bargaining,

“bars the application of state laws that would: add pre-

conditions to the riglit to strike not contained in- federal -

law, see, International Union UAW v. O’Brien, 339 U.S.

453, 458 (1950). Not only is state law regulating the basic.

right to strike preempted, but state law which does not

regulate the strike in terms but. does regulate the basic

_ component element of that right—peaceful picketing pro-

' tected by. Sections 7 and 13 of the: NLRA—is also pre-

empted. For ‘‘picketing has been equated with striking for

the purposes. of: Section 13,’’ National Labor Relations

_ Board v. Driver's Local Union (Curtis Bros.), 362. U.S8.-274,

- 281 n. 9 (1960). The decision in International Union UAW

v. Wisconsin Employment Relations: Board ( Briggs-Strat-

ton), 336 U.S. 245 (1947) relied on by Respondent would

appear to indicate however, that at least some péaceful —

strike activity may be deemed to be unregulated by federal.

law—there recurrent unannounced work stoppages—and

~ can on that account be regulated by the states.. However, ,

the basic approach of Briggs-Stratton was reversed on the~

basis of the primary jurisdiction conception of preemption

in San Diego Building Trades Council v. Garmon, 359 U.S.

236, 245 n. 4 (1959). And it is plain in addition that the ~

rationale of National Labor Relations Board v. -Insurance

_ Agénts International, 361-U:S. 447 (1960) demonstrates

that without regard to Garmon, the portion of Briggs-

Stratton relied on by respondent is no longer viable. For.

Insurance Agents recognizes that ‘‘the presence of eco-

nomi¢ weapons in reserve, and their actual exercise on

occasion by the parties is part and parcel of the system’’

_ of collective bargaining (Id. at 482), and on this basis estab-

lishes -the conclusion, critical here,. that courts. are war-

ranted in striking an economic weapon from the hands of

one of the bargaining parties only where there is a specific

warrant from Congress to do so (Id. at =e)

5.

It seems absolutely plain ‘to us that Insurance Agents

sounds the death knell not only to Board regulation of

economic weapons, which is not based on’a specific Con- -

gressional mandate, but also to state regulation of those

weapons as well. The decision in Teamsters Union v. Mor- .

-ton, 377 U.S. 252, 260 (1964), which barred the application

of state law in damage suits under Section 308 of the Labor

_ Management Relations Act confirms our reading of Insur-

ance Agents: is

. Tf the Ohio law of secondary boycott [were to] be

applied to proscribe the same type of conduct which _

-- Congress focused upon but did not prosctibe-when it .

enacted §303, the inevitable result would be to frustrate

the Congressional determination to leave this weapon

of self-help available, and to upset the balance of power

between labor and’ management expressed in our na-

tional labor policy.” | ne

2. The Respondent’s basic position here is that federal .

law does not regulate ‘‘secondary® activity by a railroad

union against a railroad company, that such activity should

- not be considered lawful on the ground that it was design-

edly left unregulated, and on this basis argues that the

injunction based on state law was properly issued here. We

think it-plain from such decisions as Railroad Telegraphers

v. Chicago & N.W.R. Co., 362 U.S. 300 (1959) that the total-

ity of the railway labor law is, at the very least, as solicitous

of the right, to engage in primary picketing during a lawful

. ‘strike over a major dispute as is the NLRA. Thus, picket-

ing which this Court has held is primary under the NLRA

‘must be considered primary under the RLA and a8 buch ~~

~ Clearly beyond the reach of the states, even if the states

are to have.some jurisdiction in this general area to inter-

dict ‘‘secondary’’ activity, cf., Youngdahl v. Rainfair, 355 |

US. 131 (195). The injunction entered by the Florida *

courts limited the union to picketing directed at the striker

replacement employees of FEC. It Barred picketing di-

. rected at the employees of the Terminal Company and other

ca ” .

ale

carriers who were making pickups and deliveries to FEC, or

otherwise facilitating the day to day operations of the

- struck carrier, at the situs of the picketing—the general

area of the Terminal Company. Thus, the Florida courts

took the position that only picketing directed at striker:

replacement employees who continue to work for the struck

employer i is primary. It is therefore plain that the decision

below is in conflict with federal law for the decision of this

Court in United Steelworkers v. National Labor Relations

Board (Carrier Oorp.), 376 U.S. 492, 499-500 (1964) has

~~ squarely rejected this restrictive definition of primary

_ activity: |

‘‘The primary strike, which is protected by ite pro-

viso, is aimed at applying economic pressure by halting

the day-to-day operations of the struck employer. But

Congress not only preserved the right to strike; it also

saved ‘primary picketing’ from the secondary ban.

Hee 2 has traditionally been a major weapon to

implement the goals of a strike and has characteristi-

cally beer aimed at all those approaching the situs

_ whose mission.is selling, delivering or otherwise con- —

tributing to the operations which the strike is endeavor-

ing to halt. In light of this traditional goal of primary

pressures we think Congress intended to preserve the

right to p&ket during a strike a gate reserved for

employees. of neutral delivery men furnishing day-to-

day service essential~to the employer’s —

operations.’ ~

ARGUMENT

THE LEGALITY OF PEACEFUL PICKETING GROW- -

ING OUT OFeA DISPUTE UNDER THE: RAILWAY

LABOR ACT IS GOVERNED IN ITS ENTIRETY BY

FEDERAL LAW WHICH PREEMPTS ALL STATE

‘REGULATION OF SUCH CONDUCT

The instant case is the latest expression of the Florida

courts’ continued inability to recognize that. state regula-

tion of the peaceful concerted labor activities of employees

and their unions is invalid if the state regulation and the

7

applicable federal labor law cannot ‘‘move freely within

- the orbit of their respective purposes without infringing

upon one another,’’ Union Brokerage Co. v. Jensen, 322

U.S. 202, 207 (1944). Thus, it is Florida which provided the

, first and the most recent case, Hill v. Florida, 325 U.S. 538 |

(1944), Nash v. Florida Industrial Commission, 389 U.S. .

235 (1967) in which this Court has been forced to overturn

a state court judgment on the ground that it infringed

_ upon the overall purposes and objectives of the National

Labor Relations Act, as amended, 61 Stat. 186, 73 Stat. 519,

_ 29 U.S.C., §151, et seq. :

In Hill, Florida entered an exclusively federal domain

in order to organize and represent Florida employees

covered by the NLRA despite the policy, inherent in that

Act, see.Section 1, of protecting ‘‘the ‘full freedom’ of

workers in the selection of. bargaining representatives

‘of their own choice’’ (325 U.S. at 541). And in Nash

Florida again entered the area of exclusive federal regula- .

tion by attempting to deprive employees, who filed unfair

labor practice charges with the NLRB, of unemployment

compensation to which they .would otherwise have been,

entitled despite the federal policy inherent in the NLRA,

see Section 8(a)(4), that ‘‘all persons with information -

about such practices [should] be completely free of coer-

' cion against reporting them to the Board’’ (389 U.S. at

238). The NLRA does not deal in particularity with the

. qualifications of organizers nor does it apply in terms to

state action which disadvantages employees. In Hill and

Nash, Florida concluded that this meant that there were.

gaps in the federal law which it was free to fill as it saw fit.

The error in this approach, which this Court corrected, is

that it fails to take into account that state action in an area

covered by federal law. may be invalid, not only when it

question in detail, but also when the state’s activities are

inconsistent with the overall thrust of the federal scheme,’

3

by attempting to require unions and their agents to register. ~

contravenés a specific provision which deals with the exact ~

ae

_ see generally, Sola Electric: Co. v. Jefferson Electric Co. *

- 8317 U.S. 173, 176 (1942). Florida’s trespass in Hdl is not

impossible to undé§stand. The regulation there could be -

Said to. be at the periphery of federal concern. In addition,

the belief that the industries covered by the NLRA ‘are

peculiarly local and, therefore, subject to state control has

been strongly held for the greater part of this century. It

was not until the late 1930’s that Congressional power over

their labor relations was definitely settléd by this Court,

National Labor Relations Board v. Jones :& Laughlin 8.

Corp., 301 U.S. 1 (1937). After Hill, however, the disposi-

tion of Nash on the state. level is more difficult to rational-

ize; and it is fair to say that that decision indicates a cer-

tain reluctance by the Florida courts to follow the teachings ,

of this @purt.. Florida’s handling of the instant case gives

added substance to this conclusion. For Congressional .

power to regulate the railroad ‘industry -has never been.

in doubt, and has been freely exercised, see ¢,g., Houston,

E. é:W.T.R. Co. v. United States, 234 U.S. 342 (1914).

And Federal dominance over the labor relations of the

railroads has\a long and unbroken history, e.g., In Re

Debs 158 U.S.\564 (1895); Texas & N.O.R. Co. v. Broth-

erhood Ry. & 8.8. Clerks, 281 U.S. 548, 570 (1930).

Finally, the tradition of federal exclusivity in this general

area has been emphasized repeatedly by this Court in a

variety of contexts, Tezas & P.R. Co. v. Abilene Cotton Oil

Co., 204 U.S. 426 (1907); Dice v. Akron, Canton & Youngs-

town R.R., 342 U.S. 359 (1952) ; Railroad Transfer Service ©

v. Chicago, 386 U.S..351 (1967), It is against this back-

_ ground that‘Florida’s attempt to regulate a basic right

guaranteed by the RLA—the right of self-help—must be

measured. When this is done the conclusion that the in- ~

junction here is the product of the same fatal flaw found

in the Florida courts decisions in Hill and Nash is man-

datory. ;

1. Statement of the Case. Whe factual background of this

case is somewhat complex and is set out in full in the .

- Union’s Brief. For the purposes of our argument; fol- |

lowing will, we believe, suffice: In April 1966 after ust-

ing the processes of collective bargaining, mediation ‘and

fact finding of the Railway Labor Act, as amended, 44 Stat.

577, 45 U.S.C. $151, et seg., without receiving satisfaction,

the Petitioners here went on strike against the Florida

East Coast Railroad Co. (FEC) (JA 343-345). On May

4, 1966 in furtherance of that strike; the Brotherhood of _

. Railroad Trainmen (BRT) began picketing on public

property adjacent to the Jacksonville — Co. (JA

182-183).

The Terminal Company i is owned and controlled by dries

interstate railroad carriers, the FEC, the Atlantic Coast

Line R. Co., the Seaboard Air Line R. Co., and the Southern

Railway System (JA 309, 287-288, 347-349, 236). It operates

@ passenger and freight rail terminal facility in Jackson- |

ville, Florida which constitutes the connecting link between

the FEC and the other carriers (Defs. Ex. 2, +e 123, ie

128-129, 151-153).

into by the four ownérs of the Terminal Company each of

the owning railroads, including the FEC, is granted an ‘

equal right to use in common all of the passenger and ©

freight facilities, plus labor services, of the Terminal

Company (Defs. Ex. 2, JA 123, 128-129, 143, 96). Like-

wise, the joint venture agreement contains numerous pro- —

visions which give each owning railroad, including the FEC,

effective control over the Terminal Company’ 8 operations

and employees, for example, by giving each railroad a

veto power over the continued tenure of any subordinate

‘Pursuant to tT venture agreement entered

_ Official, and by requiring unanimous consent of all for

policy decisions, see, Jacksonville Terminal Co. v. Florida

East Coast Ry. Co., 363 F.2d 216 (C.A. 5th Cir., _

certiorari denied, 385 U.S. 950.

Exercising its rights under this j joint venture agreement,

the FEC daily and regularly carries.on its business on the

| cen Se

Terminal Cosasatiy premises, receives and makes Stininten :

of goods and ears on and by use of (Terminal Company |

premises and. facilities, operates its trains over Terminal

Company. tracks, deals with the public from T rminal

Company facilities, maintains and repairs its engines and

cars in Terminal Company shops, and receives labor sér-

_ viees performed for it by Terminal Company employees |

(JA 281-282, 284-285, 288-290, 294, 328-330, 340-341, 346-

347). In short, as stated by the U.S. Court.of Appeals for ~

the Fifth Circuit in Brotherhood of R. Trainmen v. Atlantic —

\ Coast Line R. Co., 361 F.2d 649, 651 (C.A. 5th Cir., 1966)

affirmed by an equally divided Court, 385 U.S. 20 (1966),

the federal injunction case which grew out of the same

— at issue here: —

: . despite. the legal ‘separateness of the Terminal

ries any ’s entity and operation, it cannot be disputed

that The " tacilitios, atfd services provided by the Ter-

minal Company in fact constitute an integral part of

the day-to-day operations of the FEC, which continues

to operate both passenger and freight trains by means

- of its own striker replacement crews.’’ (Emphasis in

‘ original.) 7

All of the points adjacent to the Terminal Co. picketed ’

by the BRT on May 4, 1966 were either places where Ter- .

minal Company employees, who are under instruction to

work for, the FEC, or employees of connecting carriers

who were involyed i in making deliveries to or pickups from

the FEC, réport to work (JA 99, 96-68, 101-102, 107-108),

or the closest place on public property to the areas where

intérchange (i.e. pickups and deliveries) between FEC and’

the Atlantic Coast Line Railroad or between FEC and the

Seaboard Air Line Railroad is accomplished (JA 63, 199, |

317, 340-341, 216-217, 224, 233-234, 316, 303-304, 316).

The picket signs read, “Fellow Railroad Men Do Not -

Cross or Aid FEC, B of RT On Legal STRIKE AGAINST

. FEC, Please Make Common Cause With Us In Major Dis-

pute Against FEC’’ (JA 64-69, 225). There was no mass

~~. -

a . |

disrupt or interfere with traffic (J

picketing had been permitted to continue the eg eos

willing to take the following step to inspire that hon- FEC

moyements were not affected (JA 264):/ - ae

“Q. If they ‘stop handling F.E.C. cars,

piskating, no antoward incident of any kind, and the picket.

ing was entirely peaceful and order a4 and did not physically |

183, 229). The'picket- |

-ing did have some effect on non-FEC connected rail move-

ments but this was minimal because of the’ use of super-

\ visors and the BRT through its strike leader, ty

President Raymond C. Moore, has made it plain that\if the

down the picket lines; is that right? re “ Would be

ra urpose of putting the picket ae up. Q. O. 4

ey are for the same purpose, if I may sey

a. up to your ae oe the re of the stri

the supervisors that were present,-if they had any

trains moving that didn’t have any F.E.C. cars on it,

to tell the conductors to come up to me, and wo

pull down the picket lines when that train “eo ..

Nevertheless, all the picketing except for hat occurring .

‘at a separate gate reserved for the atrif

- employees of the FEC was enjoined within a day and has |

er replacement

not been permitted to resume. In light of the above-noted

facts, the basic question presénted comes. down to this:

Can peaceful picketing in furtherance of the right of.self- ,

‘help during a major dispute under the Railway Labor Act,

which takes place at a situs used by both the struck railroad

and other carriers, be limited pursuant to’ state law to

activity directed to the striker replacement employees of

the struck carrier thereby prohibiting conduct designed

ft

to appeal to employees of other carriers. who. are facilitat- -

‘ing the day-to-day business of the struck earrier by making

deliveries to and pickup from it, at the situs of the picketing?

2. The BRT’s Picketing Is Beyond The Reach of State

_. Law Even If It Is Considered to Constitute Secondary

Actwity. In the federal injunction case which grew out of

the same picketing at issue here, Atlantic Coast Lime R. .

20 Rn oie a . cos 12

' Co. v. Brotherhood of R. Trainmen, supra, 385 US. 20 the

. Bailroads and the Terminal Co. argued that an amalgam of

athe federal statutes that apply to railway. labor disputes,

the RLA, Sections 6 & 20 of the Clayton Act, 38 Stat.

730, 15 U.S.C. §12, et seq., and the Norris LaGuardis Act,

-47 Stat. 70, 29 U.S.C. §101 et seqg., justified an injunction -

against the BRT’s picketing at_the Terminal Co. identical

in operative terms to'ghe injunction now in force pursuant

to Florida state law. “the. BRT on the other hand argued

that the picketing should be considered to be either a pro- ©

tected form of self-help under the BLA or, at the least,

— which was legal because it was designedly left -

ulated under that statute and the Norris-LaGuardia

Act! Our reading of the briefs is that no one suggested

that there was a gap in the federal law. whigh could or

should be filled by state law. This Court split 44 in-

Atlantic Coast Line case thereby leaving the legal. dies

'- Of ie picketing in question under federal law in doubt,

except, of course, that it’ did settle it as between these

‘parties. Thus barred from securing relief under federal

law, and buoyed by the belief that there must be some relief

- against the picketing here under a natural law against .

‘‘secondary’’. activity, the Terminal Co. has now reversed

field and argues that there is after alla gap in federal law

_ that Florida has correctly moved to fill.-Given the decision

: in the Atlantic Coast Lime case the picketing here can only

be characterized as conduct designedly left unregulated: by

-- federal law, affirmatively. protected under that law, or as

unregulated activity open to state regulation. We submit .

that.it is not the last of these alternatives and that there

' is therefore no basis upon which the injunction issued below ,

can be sustained. 3

‘In Motor Coach Employees. v.. ‘heieast (874. US. 14,

1 The BRT also argued that the ‘plidetieen might arguably be

prohibited by Section 8(b)(4) of the NLRA. It repeats that

argument here. We do not treat with this contention for it is

unnecessary to reaeh it. —— our theory of the casé. .

F : , 13 : : . ‘s ~

| 82 '1963), this Court stated that ‘‘collective bargaining

“with the right to strike at its core, is the essence of the

federal, scheme”’ of the NLRA. While the NLRA and the

RLA differ ix many particulars, it is entirely accurate to ¥

' gay that in essence, the RLA is a system for ordering labor |

relations based on collective bargaining, mediation, fact

ing and voluntary arbitration with the right to strike

3 at its core. As Mr. Justice Douglas noted in an earlier case

|. Gnvolving the FEC’s labor problems, Railway Employees v:-

" Florida E.C.R. Co., 384 U.S. 238, 244 (1966) : pet

| ‘<The unions, having made their demands and having

exhausted all the procedures provided by Congress,

were therefore warranted in striking. For the strike

has been the ultimate sanction of the union, compulsory

_ arbitration not being provided: _ .

‘‘ At that juncture self-help was also available to the

“e carrier as we held in Locomotive Engineers v. Baltt-

of more & Ohio R. Co., 372 U.S. 284; 291: ‘... both parties, .

|. paving exhausted all of the statutory procedures, are

relegated to self-help in adjusting this dispute... .’”

Indeed, Congress has underlined its policy of safe-guarding =.

_ the right to strike after the other procedures of the RLA

have been exhausted by making the’ anti-injunction policy

. of.the Norris-LaGuardia Act applicable to railroad eontro-”

versies to the extent that its purposes ‘‘are reconcilable”’

. with those of the RLA, Brotherhood of R. Tf. v. Chicago —

R. & I. R. Co., 353 U.S. 30, 40 (1957). And as this.Court —

explained in Railroad Telegraphers v. Chicago & N.W.R.

- Co., 362 US. 330, 338-339 (1960) this process of accommo-

_ dation of the two statutes requires the absorption into the —

_ federal railroad labor policy of the anti-injunction. philoso-_

phy of Norris-LaGuardia except. where ‘‘a plain violation

of a basic command of the Railway Labor Act’’ is saown.

Injunctions are not warranted in the RLA context ‘‘because

the conduct of the union is unlawful under some other, non-

labor statutes’’ (Ibid.). ace oe ont es 4 :

At least prima facie then, the plan of the federal law

governing railway-tbor dhinietes ould appear to be that

unions are completely forbidden’ from exercising ‘self-help *

until ‘the other processes mandated by the RLA have been

’ exhausted and that they are free to engage in unrestricted

peaceful self-help within the railroad industry designed to

secure their demands at that point without regard to

whether those measures. are labeled primary or. ‘‘sec-

ondary.’’ Two lines of analysis:support this conclusion.

First the decisions under ‘the Norris-La@Guardia Act

. establish that all peaceful picketing which grows out of

a ‘‘controversy concerning terms or conditions of employ-'

~ . . ment?’ (29 U.S.C. §113(c)) was designedly left unregulated

_ by Congress, not only from injunctive relief by the federal

“eourts as its bare terms nfight indicate, but from all regu-

lation. The critical decision is United States v. Hutcheson,

312 U.S. 219 (1941), a criminal prosecution under the Sher- ~

man Act. There the Carpenters and Machinists Unions be-

camne involved in a dispute over erecting and dismantling

machinery for the Anheuser-Busch Company. Unable to *

secure the demanded jobs from Anheusér-Busch, the Car-

penters struck not only that company and a construction

firm doing work on its premises, but also struck and pick-

eted ay adjacent employer: who leased land from Anheuser-

‘Busch, anda construction company which was erecting a

building for the lessee. The picketing of the adjacent prem-

ises was presumably for the purpose of placing additional

pressure on Anheuser-Busch in its dispute with the Car- ©

- penters. On these facts, this Court held (Id. at 233-235) :

‘‘Clearly, then, the facts here charged constitute law-

ful conduct under Yhe Clayton Act unless the defen-

dants cannot invoke that Act because. outsiders to the —.

immediate dispute also shared in the conduct. But we -

the restrictio hich Duplex Printing Press Co. v.

- Deering, 254 U.S. 443 gave to the immunities of 420

_ of the Clayton Act. Congress in the Norris-LaGuardia

need not, tion hi whether the conduct:is legal within

Act-has expressed the public policy of the United States

and defined its conception of ‘a ‘labor dispute’ in terms

>

&

15

that no ‘alia leave room for doubt. Milk Wagon .

Drivers’ Umion v. Lake Valley Farm Products, 311

| ‘91, ante. This was done, as. we recently said, in

ordie to ‘obviate the results of the judicial construc- _

tion’ therefore given the Clayton. Act. New Negro —

Alliance v. paary Grocery Co., 508 U.S. 552. ;

“TD be sure, wn oxttienent this national policy

and determined the bounds of a labor dispute in an act

explicitly dealing with the further withdrawal of in-

junctions in labor controversies. But to argue, as it was

urged ‘before us, that the Duplex Printing: Press Co. _

case still governs for purposes of a criminal prosecu- °

tion is to say that that which on the equity: side of the .

court is allowable conduct may in a criminal proceeding ©

become the road to prison. ... That is not the way to ~

read the will of Congress, particularly when expressed

by a statute which, as we have already indicated, is

practically and historically one of a series of enact-

« . Iaents touching one of the most sensitive national prob-

lems. Such legislation: must not be read in a spirit of

mutilating narrowness. .... The appropriate way to

read legislation i in a situation like the one before us,

was indicated by Mr. Justice Holmes on circuit: “A

statute may indicate or require as its justification a

change in the policy of the law, although it expresses —

that change only in the specific. cases most. likely’ to

occur to the mind. The Legislature has the power to

decide what the policy of the law shall be, and if it has

. intimated_its will, however indirectly, that will should

be recognized and obeyed.”? |.

In short just as Congress mdy, when it choones to do so,

announce a broad federal policy which precludes the appli-

cation of state law in both state and federal forums by a

statiite which on-its face merely grants the federal courts

subject, matter jurisdiction, Textile Workers v. Lincoln

Mulls 353 U.S. 448 (1957), Teamsters Local 174 v. Lucas

Flour Co. 369 U.S. 95 (1962), Machmmists v. Central Aitr-

lines 372 U.S..682 (1963) it is free to accomplish the same

i

*.

16

” objective j in a law which in terms appears to limit the Fed- -

eral courts equity jurisdiction. |

The plan of the RLA, the Norris-LaGuardia ial om

Clayton Act thus indicates that Congress has found r

tion of the timing of self-help, always a critical sietier ts in

labor relations, see, American Ship Bldg. Co. v. National

Labor Relations Board 380 U.S. 300, 310 (1965):; Liner v. -

Jafco, 375 U.S. .301, 307-308 (1964) to be sufficient to accom-

plish its purposes in the railroad industry. Congress has

therefore deliberately refrained. from embarking or the

detailed regulation of economic weapons found in Section 8

of the NLRA, preferring instead to give the parties a free.

hand i in self-help unless their activities contravene a basic

~ command of the RLA, cf., Railway. Employees v. Florida

E.C.R. Co. supra, 384 U.S. at 246-248.

It is true that in: 1947 Congress decided that iene

under the NLRA indicated that the right to employ’’ sec-

*) ‘ondary”’ pressure had been abused ‘and moved to correct

that abuse in Seetion 8(b) (4) of the NLRA-and Section 303

of the Labor Management Relations Act, 61 Stat. 136, 29

U.S.C. §173 et seq. But Congress refused to similarly amend

..the federal law.governing railway labor relations. As Sen-

ator Taft noted: ‘‘there were no abuses which had arisen in

connection with the operation of the Railway Labor Act

[as to secondary boycotts]. In general, we confined our

amendments to. the bill to acts which from evidence before

the committee were specifically shown to be abuses,’ 2

Legislative History of the Labor-Management Relations

Act 1947 (G.0.P. 1948) 1571. Moreover, while Section

8(b}(4) of the NLRA-and Section 303 of the LMRA render

the specific: types of ‘‘secondary’’ picketing they cover

unlawful, Congress was careful to-insure that only a gov-

ernmental agency, expert in labor relations, was empowered

to secure injunctive relief.’ This limitation was considered

of critical importance. Thus, Senator Taft stated, (2 Leg.

Hist., LMRA —

a

- 2 r

‘*In the progress of the consideration of a bill the -

Senater in charge of it should judge the temper of the —

Senate and the action which ‘should be taken. I found

_ that opposition to restoring the injunctive process even _

in cases of secondary boycotts and jurisdictional

strikes, seemed to be so strong, and I am so anxious to .

retain provisions covering the right of direct action in -

suits brought for damages in cases of that kind, that I

have determined that I shall vote against the Ball

amendment and then offer the substitute, which pro-

__. vides for direct suits in cases of secondary boycott. I

' think that will be a powerful deterrent. : While the in-

_ junctive process through the: National Labor Relations

Board is not so direct, it is an injunctive process of a’

kind; but without the right’'to sue for damages, there

is no recourse for a man who is injured by a seconda

boycott.”” See generally 2 Leg. Hist. LMRA 1347-1400.

Yet, here the railroads seek precisely what Congress re-

fused to grant when it amended the'NLRA—the right, as

a private party to secure an injunction against peaceful

concerted activity. |

Second, the same conclusion follows from the structure

of the RLA alone. In enacting the RLA the Government

_has not undertaken ‘governmental regulation of wages,

hours or working conditions. Instead, it seeks to. provide a

means by which agreement may be reached with respect to

them,’’ Locomotive Engineers v. Baltimore & Ohio R. Co.;

372 U.S. 284, 289-290 (1963), compare, National Labor Re-

lattons Board v. American Nat. Ins. Co., 343 U.S. 395, 402

(1952). And this system of. labor relations presupposes the

‘ right to employ economic weapons which are not, merely

“‘academic,’’ Railway Employees v. Florida E.C.R. Co.,

. supra, 384 U.S. at 246, as'an integral part of the bargaining

. process which ig set up by federal law. For pursuant to the

‘Congregsional plan self-help is considered to be a continua-

tion.of the bargaining process just as Bismarck considered

war to be a continuation of diplomacy by other’ means,

~ compare National Labor Relations Board v. Insurance

_ Agents International, 361 U.S. 47 (1960). . “

i 18

From the first it has been iced ‘that this aay

system of labor relations. based on free collective bar-

gaining” bars the application of state laws that would add .

preconditions to the right to strike not. contained in federal.

law. Thus, in International Union UAW v. O’Brien, 339

Us: 453, 458 (1950), this Court stated:

. ‘*Bven if some state legislation in this.area could be

? gustained,-the particular statute before us could not

-_ stand. For it conflicts with the federal Act. The Michi-

gan law calls for a notice given ‘Int the event the parties

_...are unable to settle any dispute’ to be followed by

mediation, and if that is unsuccessful, by a strike vote

within twenty days, with a majority required to autho-

-rize a strike. Under the federal] legislation, the pre-

- seribed strike notice can be given sixty days before the

contract termination or modification. §8(d). The fed-

eral Act thus permits strikes at a different and usually

earlier time than the Michigan law; and it does not

require majority authorizatio#, for any strike.’

er the states are. also barred from prohibiting a strike

against a public utility authorized by federal law on the

ground that thé strike would create an emergency situation

that could not be tolerated. For such a justification for

state action was explicitly rejected in Amalgamated Assoc.

S.E.R. & M.C.E.v. Wisconsin Employment Relations mere,

340 U.S. 383, 393-394 (1951) :

As we have noted, in 1947 Congres enacted special

procedures to deal with strikes which might create

_ national emergencies. Respondents rely upon that

- action as showing a congressional intent to carve out a

' separate field of ‘emergency’ labor disputes and, point-

ing to the fact that Congress acted only in respect to

‘national emergencies,’ respondents ask us to hold that

Congress intended, by silence, to leave the states free

to. regulate ‘local emergency’ disputes. . . . Congres-

siona imposition of certain restrictions on ‘petitioners’

right to strike, far from supporting the Wisconsin

Act, shows that Congress has closed to state regulation ©

the field of peaceful strikes i in industries affecting o com-

merce. International.-Union, United Auto Workers v.

O’Brien, supra. (339 U.S. at 457). And where, as here,

the state seeks to deny entirely a’federally guaranteed

right which Congress itself restricted only to a limited .

extent in case of national emergencies, however serious,

it is manifest that.the state legislation is in conflict

with federal law.’’ bee 4

See also, Motor Coach Employees v. Missouri, supra,

374 US. 74.? es ee

The foregoing cases demonstrate not only that state law

regulating the basic right to strike is preempted but alsp

that state law which does not regulate the stfike in terms

but does regulate the basic component element of that right

—peaceful picketing protected by Sections 7 and 13_of the

NLRBA is also preempted for ‘‘picketing has been equated

with striking for the purposes of §13. See NLRB v. Inter-

national Rice Milling Co. 341 U.S. 665,’’ National Labor

Relatwns Board v. Drivers Local Union (Curtis Bros.), 362

U.S. 274, 281 n. 9 (1960) ; cf., Locgl No. 438 v. Curry, 371

- U.S. 542 (1963). But the decision in International Union

UAW v. Wisconsin Employment Relations Board (Briggs-

Stratton), 336 U.S. 245 (1947) relied on by Respondent

(Br. in Op. 18) would appear to indicate that at least some

peaceful strike activity may be deemed to be unregulated

by federal law—there recurrent, unannounced work stop-

pages—and can on that account be regulated by the states.

-In other words, it can be argued that Briggs-Stratton

stands for the proposition that the preemption of substan-

tive state law regulating peaceful strike weapons by federal -

labor law extends only to all protected concerted activity

? Nor can the states expend their powers in the field of labor law

by relying on their laws governing restraints of trade, Weber v.

Anheuser-Busch, 348 U.S. 468, 481 (1955) ; see also Local 24 Team-

sters v. Olwer, 358 U.S. 283 (1959). And in light of this Court’s

decision in Rawroad Telegraphers v. Chicago & N.W.R. Co., supra,

362 U.S. at 339, n. 15, it is also plain that both federal and state

transportation acts cannot convert an otherwise legal strike into

- an unlawful one.

under federal law and not to all — concerted activity

deemed unregulated. —

_ There. are two answers to the proposition that Briggs-

Stratton strengthéns the case for application of state law

here. The first is that the picketing enjoined here is deemed -

open to state regulation primarily on the ground that it

is ‘‘secondary,’’ (Br. in Op. 14). This is as it has to be in

light of the cases cited on pp. 18-19 supra, which taken to-

gether, demonstrate that a peaceful strike cannot, as the

Florida courts thought (A. 5a) be deprived of its federal

protection by ‘‘emergency’’ conditions, state antitrust laws ~

_ or state transportation acts Thus, the Terminal Co.’s

argument if it is to gain the benefit of Briggs-Stratton must

-be based on the assumption that ‘‘seeondary’’ activity

is not protected: It is true, of. course, that certain specified

‘*secondary’’ activity is now unlawful under the NLRA

and LMRA but prior to the inclusion of the provisions —

which accomplished that result the weight of federal author-

ity indicated that peaceful concerted ‘‘secondary”’ activity

for mutual aid and protection was protected activity under -

Section 7: of the NLRA. The leading case is. National

Labor Relations Board vy. Peter Cailler Kohler Swiss

Chocolates Co., 130 F.2d 503, 505-506 | (C.A. 2nd Cir., 1942)

(L. Hand, J.):

‘*When all the other workmen in a shop make com-

mon cause with a. fellow workman over his separate

grievanee, and go out on strike in-his support, they

engage m a ‘concerted activity’ for ‘mutual aid or

protection,’ although the aggrieved workman is the ~

only one of them who has any immediate stake in ‘the

Fe if the Terminal Co. had been shat down by a

lawful strike of its own employees after bargaining had failed

and the Terminal Co. was unable to operate without their services

the same ‘‘emergency”’ said to exist here would come into being.

While the Florida courts have not articulated the basis for apply-

ing its restraint of trade law or its transportation law to the con-

troversy here, it is fair to assume that they would be violated in

that situation as well, yet it is perfectly plain that state law

would: not apply.

e.

6

‘ J \ f . - .

+. +t ;

' outcome. The rest know’ that by their action each one

of them assures himself, in case his turn ever comes, of =

the support of the one-whom they. are all then helping 5

‘and the solidarity so established is ‘mutual aid’ in the

- most literal sense, as nobody doubts. So too of those

engaging in a ‘sympathetic strike,’ or secondary boy-

cott; the-immediate quarrel does not itself concern

them, but by extending the number of those who will 3

make the enemy of one.the enemy of all, the power of

each is vastly incr ; It is one thing how far 4

community should allow such powor to grow; but, what-

ever may be the proper plave to check it, each separate «

extension is certainly a step in ‘mutual aid or protec-

tion.’ Cf. Fort Wayne Corrugated Paper Co. v. Na-

tional Labor Relations Board, 7 Cir., 111 F.2d 869, 873, |

874. It is true that in the past courts often failed to

‘recognize the interest which each might have in a

solidarity.so obtained (e.g. Duplex Printing Press Co.

v. Deermmg, 254 US. 443, 471, 472, 474) but it seems to

us that the act has put an end tothis.” ssi

There is nothing in Briggs-Stratton to indicate that the

Court viewed secondary activity as well as recurrent unan-

nounced work stoppages as unprotected activity prior to

the 1947 amendments to the NLRA nor do we know of any

other decisions which indicate that the Court was in dis-

agreement with Judge Hand’s analysis. The structure of

the RLA today is comparable to the.structure of the NLRA

before it was amended and since that structure includes the

. Norris-LaGuardia Act whose policy is set against the

proposition that secondary activity is unlawful, we believe

that even if this picketing was ‘‘secondary,’’ but see pp.

25-32 mfra, it is, as Peter Cailler K ohler holds, protected

activity which the states cannot regulate.

Second, the basic. approach of, Briggs-Stratton was re-

versed on the basis of the primary jurisdiction principle

of preemption in San Diego Building Trades v. Garmon,

359 U.S. 236, 245 n. 4 (1959) see also National Labor Rela-

tions Board v. Insurance Agents International, supra, 361

U.S..at 493 n. 23. Having been interred on that ground in

Garmon/was no need for the Court to exhume the body in —

order to rebury it in Insurance Agents. However it is plain

that the rationale of Insurance Agents demonstrates that

without regard to Garmon the portion of Briggs-Stratton

relied on by Respondent is no longer viable. We submit in

other words that the decisions of this Court hold that the -

federal scheme of bargaining with the right to strike at its

core demands the absolute preclusion of regulation of

peaceful strike weapons on the basis of state law. We start

from the essential position developed by Mr. Justice Bren-

nan in Insurance Agents (361 U.S. at 482): *

‘*It must be realized that collective bargaining, under

a system where the Government does not attempt to

control the results of negotiations, cannot be equated

with an academic collective search for truth—or even

with what might be thought to be the ideal of one. The

parties—even pape het modification of views that

may come from a realization of economic interdepen- .

* dence—astill proceed from contrary and to an extent

antagonistic viewpoints. and concepts of self-interest.

The system has not reached the ideal of the philosophic

notion that perfeet understanding among people would

lead to perfect agreement among them on values. The

presence of economic weapons in reserve, and their

actual exercise on occasion by the parties, is part and

parcel of the system that the Wagner and Taft-Hartley

Acts have recognized. Abstract logical analysis might

find inconsistency between the command of the statute

to negotiate toward an agreement in good faith and

the legitimacy ‘of the use of economic weapons, fre-

quently having the most serious effect upon individual

workers and productive enterprises, to induce one

party to come to the terms desired by the other. But -

the truth of the matter is that at the present statutory

stage of our national labor relations policy, the two

factors—necessity for good-faith bargaining between

parties, and the availability, of economic pressure de-

vices to each to make the other party incline to agree on —

one’s terms—exist side by side. One writer recognizes

this by describin nomic force as.a ‘prime motive

‘power for agreements in free collective bargaining.’ -

,

.

o .

,

.

A eam sree Gen en eeqeen nee

.

LEN Nd OS

on 4

23

Doubtless one factor influences the other; there may

. be less need to apply economic-pressure if the areas of

» controversy have been defined through ‘discussion ;

and at the same time, negotiation positions are apt to

be weak or oe in accordance with the degree of

economic power the parties possess.’’ ;

After developing this basic’ point, Mr. Justice Brennan

then went-on to establish the conclusion, critical here, that

courts and administrative agencies are warranted in strik-

ing an economic weapon from the hands of one of the bar- .

gaining parties only where there is a specific warrant from _

Congress to do so, compare, Railroad Telegrapher) v. -

Chicago 4 N.W.R. Co., 362 U.S. at 338-339. For this. ap-

proach and this approach alone insures that the delicate

balance of considerations upon which a system of free

collective bargaining rests will be maintained in equilibrium

(361 U.S. at 490, 492-494, 498-499): -

_ *. ., We think the Board’s approach involveg an jn-

trusion into the substantive aspects of the barpai

process—again, unless there; is some specific warrant

for its condemnation of the precise tactics involved

here. ... If the Board could regulate the choice of eco-

nomic weapons that may be used as part of collective

bargaining, it would be in a position to exercise consid-

erable ‘adieenes upon the substantive terms on which

the parties contract... _ _

ee & * 7 * e

**Congress has been rather specific when it has come

to-outlaw particular economic weapons on the part of

unions. ... But the activities here involved have never

been specifically outlawed by Congress. To be sure, the

. express prohibitions of the Act are not exclusive—if

there were any questions of a strategem or device to

evade the policies of the Act, the Board hardly would

be powerless. Phelps Dodge Corp. v, NLRB, 313 U.S.

177, 194. But it is clear to us that the Board needs a

more specific charter than §8(b) (3) before it can add to

the Act’s prohibitions here.” * |

_ It seems absolutely plain to us that Insurance Agents ,

Lines, 372 U8. ae

ae eee

- gounds the death ‘imell not only to Board regulation of

economic‘weapons which is not based:on a specific Congres-

.» gional mandate, ‘see also, American Ship Bldg.: Co. v.

-- National Labor Relations: Board, supra, 380.U.S. 300, but —-

> also to: state. regulation of those weapons. To say that _

@ the. Court’s declaration that.it was beyond the Board’s —

ay _ 4°

eompetence to outlaw the so-called partial strike leaves the.

_ -states free to do so. would be absolutely contrary to. the

@ — . logic of Insurance Agents, which establishes that strike

4. weapons which ‘were not expressly forbidden were design-

edly left in the union armory. The decision in Teamsters

-° Union v. Morton, 377 U.S. 252, 256-257, 259-260 (1964)

which rejécted the contention that state secondary boycott

*” law could -be applied in a damage suit under Section 303

:* of the LMRA, even though the Garmon principle does not

apply, confirms, our.reading of Insurance Agents: |

Tt ig the respondent’s contention. that ‘since the

petitioner union’s peaceful conduct. was neither argu-

ably protected under. §7 nor arguably prohibited under

ders —§8°of thé National Labor Relations Act, as aménded,

_ the trial court was free to award damages on the basis

of state law for. injuries. caused by this condict. But

even though it may be assumed that at least some of

. .~s' "the secondary rit here involved was neither pro

3

~ “tected nor prohibited, it is still necessary to determine

- whether by enacting $303, ‘Congress occupied this field

and ¢losed_it to state regulation.’ Automobile Workers .

¥v. O’Brien, 339 U.S. 454, 457... . The answer to that

uestion ultimately depends-upon whether the applica: .

__. tion of state law in this kind of case would. operate to

‘frustrate the purpose of the federal —— Colo-

_ rade_Anti-Discrimination Comm’n v. Contimental Air

5 : ‘i e e * a) ; as

_ _-#*In this case, the petitioner’s request to Launder’s

> management ta cease doing business with the respon-

- dent was not proscribed by the Act. .‘[A] union is free.

to. approach an employer ‘to persuade him to engage

y

3 in a boycott, so long as it refrains from the specifica

» 95 ,

. prohibited means of coercion through inducement of

employees.’ Carpenters Local 1976 v. Labor Board,

supra, 357 U.S. at 99. This weapon of self-help, per-

_ mitted by federal law, formed an integral part of the

_petitioner’s effort to achieve its bargaining goals dur-

ing negotiations with the respondent. Allowing its-use

is a part of the balance struck by Congress between

the conflicting interests of the union, the employees,

the employer and thé community. Electrical. Workers

Local 761 v. Labor Board, 366 U.S. 667, 672. ° If the

Ohio law of secondary boycott can be applied to pro-

scribe the same type of conduct, which Congress focused .

upon but did net proscribe when it enacted §303, the

inevitable result would be to frustrate the congressional

- determination to leave this weapon of self-help avail-

able, and to upset the balance of power between labor

and management expressed in our national labor

policy.’’ CRS Sate, ae a

: In sum, we submit that there is no room for state regu-

—~—-~* lation of the use of peaceful weapons of self-help in a dis-

_ pute.covered by the RLA. whether they are deemed pro-

tected or unregulated, for any such: regulation would in-- 4“

fringe upon the system of labor relations established Je

» Congress. | |

3. The BRT’s Picketing Was Primary Activity And As

Such Is Beyond The Reach of State Law. As we have noted

p. 20 supra, the Respondent’s basic position here is that

federal law does not regulate. “ secondary’’ activity by a

“j railroad union against-a railroad company, that such activ-

ity should-not be considered lawful on the ground that it

was designedly left unregulated, and. on this basis argues

that the injunction based on state law was properly issued.

Neither. the Florida courts nor the responderit have seen

fit to explain the exact dimensions of-the area of *secon-

| dary’’ activity open to. state regulation and this is indeed

most unfortunate in-light of the fact that the primary-

secondary dichotomy is perhaps the most complex and

- difficult concept in labor law and one ‘which must be han- *

died with special care to insure that the basic right to |

a OR A eh a i RNR Bi ond

26

served in Electrical Workers v. National Labor Relations

Board (General Electric Co.), 366 U.S. 667, 673-674 (1961).

on the basis of a years of experience with Section |

. 8(b)(4) of the NLRBA:

_ This provision could not be literally construed ;

- otherwise it would ban ‘most strikes historically consid-

ered to be ak so-called primary _——

* e e &

‘‘Important as is the distinction between legitimate

“primary activity’ and banned ‘secondary activity,’ it

does not present a glaringly bright line.

‘¢@ - @ * e

.

“Seaeve difficult the drawing of lines more nice

strike is not undermined. As Mr. Justice Frankfurter ob- .

than obvious, the statute compels the task. Accordingly,

the Board and the courts have attempted to devise rea-

sonable criteria drawing heavily upon the means to :

‘which a union resorts’in promoting its cause.

- * * e

‘The nature of the problem, as noenmied by unfold-

ing variant situations, inevitably involves an evolu-

‘ tionary process for its rational response, not a quick, ~

definitive formula as a comprehensivé answer. And so, _

it is not surprising that the Board has more or less. .

- felt its way during the fourteen years in which it has

had to apply §8(b)(4)(A), and has modified and re-

‘formed its: epuneren on the basis a accumulating

experience.

We think it plain from. such decisions as Railroad Teleg-

raphers v. Chicago & N.W.R. Co., supra, 362 U.S. 330 and

Locomotive Engineers v. Baltimore & Ohio R. Co., supra,

372 U.S. 284 that the totality of federal railway labor law

is, at the very least, as solicitous of the right to engage in

primary picketing during a lawful strike over a major dis-

pute as is the NLRA. In other words picketing which this

Court has considered to be primary under the NLRA must.

be considered primary under the RLA and as sugh clearly

beyond the reach of the states. J ‘ust as it is beyond the com-

} 27

waliatinie of the states to enjoin peaceful concerted activity in

furtherance of their éonceded’ jurisdiction. over violent

activity, Youngdahl v. Rainfair, 355 U.S. 131, 139 (1957) it

is beyond the states’ power to enjoin primary picketing di-

rected at railroads even if they have the power to deal with

“secondary’’ activity. Thus, assuming arguerdo that the

states have some jurisdiction in this general area the in-

quiry narrows to whether the picketing enjoined here was

in fact ‘‘secondary”’ activity. We submit that-it was not. _

The injunction entered by the Florida courts limited the

Union to, picketing directed at the striker replacement em-

ployees of FEC. It barred picketing directed at the m-

ployees of the Terminal Co., and other carriers, who were

making pickups and deliveries to FEO, or otherwise facili-

tating the day-to-day operations of the struck carrier, at the -

situs of the picketing—the general area of the Terminal

Co. Thus, the Florida courts took the position that picket-

ing is primary, only if it is directed solely at pgp replace-

- ment employees who continue to work for the struck em-

ployer.; On occasion, over a period of many years the

lower federal courts and the NLRB took the same view.

This history and the reasoning supporting the approach

were fully articulated by the Second Circuit in Carrier

Corp. v.,National Labor Relations Board, 311 F.2d 135,

146 (C.A. 2nd Cir., 1962), where the court concluded:

‘In picketing the railroad right af way adjacent to

the Carrier plant, the union was not furthering its

legitimate sg of publicizing its dispute to Car-

rier employees. Hight gates on the employer’s prem-

ises existed, and were picketed, for this purpose.

Carrier employees, prior to the strike, were not per-

mitted access to the plant through the gate on the rail-

road right of way. In picketing on the railroad right of

way the union demonstrated that its manifest,and sole,

objective was to induce or to encourage railroad em-

- ployees, or to coerce the railroad, to refuse to handle

Carrier goods or otherwise to deal with the rimary

employer. Such results, although permissib e when .

aca ea ea aac ae

merely incidental to the pursuit of legitimate objec-

tives, Di Giorgio Fruit Corp. v. NLRB, 89 U.S. App.

D.C. 155, 191 F.2d 642 (1951), here involved no such

redemptive feature. The actions of the union. were

. thus in violation of §8(b)(4)(iJ. and (ii)(B) of

the Aect.’? ©. |

* But Carrier represented the demise of that: view for this

Court reversed the Second Circuit in United Steelworkers “ -

: v. National Labor. Relations Board (Carrier. Corp.), 376

U.S. 492 (1964). In Carrier the Court first reviewed and _

_restated the basic principles it had set out-in the General —

Electric (376 U.S. at 492-496) : >

‘‘Noting the conceded fact that the deliveries and ©

removals by the railroad in this case were made in

connection with*the normal operations of the struck

employer, the Board regarded as dispositive this

Court’s decision in Electrical Workers Local No. 761 v.

Labor Board, 366 U.S. 667, General Electric-case. °

‘‘The Court of Appeals for the Second Circuit re- ~

versed the Board’s decision on the ground that the

picketing at the railroad .gate was directed solely at

' the neutral railroad employees and could not bé re-

garded as incident to’ what the court considered the

‘only legitimate union objective: publicizing the labor

* dispute to the employees involved therein, those work- ’«

‘ing for Carrier. This Court’s holding in General Eleec- .

“tric was deemed inapposte since the gate in the present -

case is located on premises: belonging to the neutral

employer. 311 F.2d 35. et

e-. @

» e-

‘The Court oe the approach neither of the

Board nor of the Union [in General Electric]. The

- location of the picketing, though important, was not

deemed of decisive significance; picketing not to

be protected simply because it occurred at TH€ site of ©

- the primary emp ist ’g plant. Neither, however, was

all picketing forbidden where occurring at gates. not

used by primary employees. The legality of sepafate .

8 picketing depended upon the type of work being ~

one by the‘employees who used that gate; if the duties “

go

2°

H 29 .

| “of those employees were connected with the normal

é operations of the employer, picketing directed at them .

_ / was protected primary activity, but if. their work was

' unrelated to the day-to-day operationof the employer’s

plant, the picketing was an unfair labor practice.

: ; - * e &

‘*Tt seems clear that the rejection of the Board’s posi-

tion in General Electric leaves no room for the"even

’ , narrower approach of the Court of. Appeals in this

ease, which is that the picketing at the site of a strike

could be directed at secondary employees only where .

incidental to appeals to primary employees. Under this

test, no picketing at gates used only by employees of

‘ delivery men would be permitted, a result expressly

disapproved by the Court in General Electric.’’

_ Having done so it then stated its holding in the following

terms (Id at 499-500): .

' “The primary strike, which is protected by the proviso,.

ts aimed at applying economic pressure by halti ug the

day-to-day operations of the-struck employer. But Con-

gress not only preserved the right to strike; it-.also

’ saved ‘‘primary pieketing’’ from the secondary ban.

See Picketing has traditionally been a' major weapon to im-

_ plement the goals of a strike and has characteristically

been aimed at all those appraching the situs whose .

mission is selling, delivering or otherwise contributing ©

| to the operations which the strike is endeavoring to ©

; , halt. In light of this traditional goal of primary pres-

‘ . sures we think Congyess intended to preserve the right

i : to picket during a strikeva gate reserved for employees

, of neutral delivery men furnishing day-to-day service

: . essential to the,employer’s regular operations.

‘‘Nor may the General Electric case. be put aside for

the reason that the picketed gate in the present case

was located on property owned by New York Central

Railroad and not upon property owned by the primary

_ employer. The location of the picketing is an important

| but not decisive factor, and in this case we agree with -

_ Judge Lumbard that the location of the pi eted gate

: upon New York Central property has little, if any sig-

nificance: gi é |

/ 7 30 4 |

/ - ‘Tn this case, it is undisputed that the railroad’s

p. | operations for Carrier were in furtherance of Car-

‘. pier’s normal business. It is equally clear from the

record, that the picketing employees made no at-

tempt to interfere with any of the railroad’s,opera-

tions for plants other, than Carrier. The railroad

employees were not encouraged to, nor did they,

refuse to serve the other plants. The picketing was

_ designed to accomplish no more than picketing out- |

‘side one of Carrier’s,own activeey entrances might

- have accom lished. Because the fence surrounding

. the railroad’s right of way was a continuation of

the fence surrounding the Carrier, plant, there was

no other place where the union could have brought ae ae

home to the railroad workers servicing Carrier its ~

dispute with Carrier.’ 311 F.2d 135, 154.

‘‘The railroad gate adjoined company property and was

_ in fact the railroad entrancé gate to the Carrier plant.

For the purposes of § 8(b) (4) picketing at a situs so

proximate and related to the employer’s day-to-day

_ operations is no more illegal than if it had occurred at"

a gate owned by Carrier. 7 (Emphasis added.) —

The picketing enjoined here fits squarely within the Car-

'. vier definition of primary picketing. For it was, as we have

just stated, picketing designed to stop pickups from, de-

liveries to, and other: services relating to the day-to-day -

operations ‘of, FEC at a situs at which that struck railroad

was carrying out an integral part of its business. It is true

. _ that here as opposed to Carrier, the picketing took place

at a situs at which activities completely unrelated to the.

day-to-day operations of the struck employer were also

taking place, i i.e. a so-called common situs. But that, too, °

was true in General Electric and was not considered a -

ground for interdicting picketing that was directed at —

- those day-to-day activities—and Carrier builds: on and

-elarifies the principles of General. Electric.

It is true also that while the picketing here as in Carrier ;

- was not intended to interfere with operations other than

= be

cee

31

those of the struck employer, in the instant case as op-

posed to Carrier, it did have a limited effect on the opera-

. tions of the other railroads sharing the site with the FEC.

But it is intent not effect which is the touchstone, ‘“how-

ever severe the impact of primary activity on neutral em-*

ployers it [is] not thereby transformed into activity with

a secondary objective,’’ National Woodwork M frs. Assn.

v. National Labor Relations Board, 386 U.S. 612, 627°

(1967), see also, General: Electric, 366 U.S. at 673-674,

Houston Contractors Assn. v. National Labor Relations

Board, 357 F.2d 182, 187 (C.A. 5th Cir., 1966) affirmed on

this point 386 U.S. 664 (1967). The principles.of Carrier

continue to be applicable where the struck employer inter- -

twines his activities with the activities of others as Gen-

eral Electric demonstrates. Thus it is plain that the

result of Carrier would have been the same if the ~

Carrier plant had,been in an industrial park shared |

by a number of ala plants served by a single rail-

road spur. If thj# were not true the prohibition of the

secondary boycott would be transmuted into exactly the

‘‘clear invasion on traditional primary activity’’ General

Electric, 366 U.S. at 681, that this Court has refused to

countenance. For the theory of Carrier is that it ig legiti-

mate primary activity to attempt to shut down a struck

"operation by picketing designed to stop pickups and ‘de-

liveries, or the rendation of other services, needed to keep

that operation going. Thus as long as the picketing anion

restricts itself to that course and takes reasonable steps

designed to guard against the involvement of the tenants ©

of the common situs whose operations are not related to

the struck employers its picketing is legal under National

_ Woodwork, cf. Seafarers Union v. National Labor Rela-

‘tions Board, 265 F.2d 585 (C.A. D.C. Cir., 1959), see

also, Sailors Union of the Pacific (Moore Drydock Co.)

92 NLRB 547 (1950). The BRT compiled with this re-

quirement here. Its signs identified the struck employer,

its picket lines did not cut tracks used exclusively by

>.

32

nonstruck carriers, and it indicated that if sufficient time ;

for the picketing to hit its stride had been allowed, it

was willing to take such steps as removing its picket lines

: from time tq time so as to allow train movements not

connected with the FEC. :

In sum, we suggest that there is no rational distinction

between the picketing in ‘the instant case and the

picketing authoritatively designated as primary by this

Court in Carrier. Thus, if the Court should choose not

_ te reach the question of whether the states are completely

~ ousted from the regulation of peaceful picketing covered

by federal railway labor .law, we ‘submit that -it .should

hold that they cannot enjoin primary picketing by railroadq- ;

unions and find that the picketing here was in fact primary.

‘CONCLUSION ~

For the foregoing reasons as well. as those stated by the

Petitioners the decision below should be reversed.

Respectfully submitted,

J. Aupert Wout -

ois General Counsel, AFL-CIO

: Rosert C. Maver

LavRENCE GoLp s

736 Bowen Building

815 Fifteenth Street, N.W.

Washington, D.C. 20005

Tomas E. Harris ;

Associate General Counsel, AFL-CIO

815 Sixteenth Street, N.W.

Washington, D.C. 20006

August, 1968 .