# Amicus Curiae Brief — Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0071%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 394 U.S. 369 ## Text 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. & 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 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0071%3A06. Public record. Not legal advice.