Amicus Curiae Brief — Boys Markets, Inc. v. Retail Clerks Union, Local 770

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: Interest of the Amicus Callee and Preliminary

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TABLE OF AUTHORITIES CITED

Cases Page

“Aveo. Corp. v. Aero Lodge 735, LAM, 390 US.

557 2 :...4,

‘Bowd Box Co. v. Courtney, 388 U.S. 502:=.........

‘CaD. Draucker, Inc. y. International Union of Op-

erating Engineers, 350 F 2d 936, cert. den. 384

U.S. 904

International Union v. Beg Cardinal Pei .» 383

OE Sea AC EARE Oe Sean RANE aaaee ere

McCarroll v. L.A. County. Dist. ‘Council, 49 Cal. 2d

WTAE ION NE asco ak edhe sonstbioee gael 8,

New Orleans Steamship hadi v. General

Longshore Workers, ILA, Local Union, 389 F,

2d 369, cert. den. 393 U.S. 828. tewckitniedl 6,

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

ca

448

Miscellaneous |

I. Legislative History of the Labor-Management Re-

Jpttons Act of 1947, Pp. 423-264 ....... '

Ruiles

- Revised Riis ok tea Supreme cis of the United

: ‘States, Rule 42(2) ..

» Statutes

Labor-Management Relations Act of 1947, See. 301

aid, By 6, 10,

Norris-LaGuardia Act., Sec. 4 rs

Senate Bill (No. 1126)

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Textile Workers. Union v, Lincoln Mifls, 353 US.

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IN THE

_ Supreme Cort of the United States

ber Term, 1969 sa

No. 768 ;

THE Boys Markets, INc., 7

| | Petitioner,

US. ae ¥ rs

, a

RETAIL CLERK’s Union, Locat 770, a

© Amicus Curiae Brief of *Plambing-Hintitg. and

Piping Employers Council of Southern Cali- :

— Inc.

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Interest of the Amicus Curiae and Ee:

7 Preliminary Statement. Min Ble rol aces

Plumbing-Heating and Piping Employers Council of

Southern California, Inc. (hereinafter referred. to as

the “Plumbing Council”) is a California non-profit cor-

poration engaged in representing approximately 328 em-

ployers in the plumbing industry ‘in the nine southern 2

counties in the State of ' California. Together these

membet-employers, i approximately 6,000. em-

_ ployees or an estimated one-half of the plumbers en-

gaged in business in Southern California, 4 we

Fie ule fs iF

| —2—

This Brief is filed: upon the written consent of the .

parties and pursuant to Rule 42(2) of the Revised Rules _.

if of the Supreme Court of the United: States. This

Amicus Curiae has an ‘interest in this case in that its

_ member-employers, have for many years collectively. en-

gaged in multi-employer bargaining and have been and

are now parties to collective bargaining agreements that

\ in pertinent’ respects are: the sante or similar to the

\ Agreement in the instant action. “The Plumbing Coun-

\ cil has repeatedly found it necessary to enforce the pro-

\visions of these agreernents through the injunctive proc-.

7 ess in numerous State courts in California’)

The decision of the Court of Appeals for the Ninth

Circuit is of particular and vital importance to the.

members of the Plumbing Council in that it -adversely i

affects the stability of labor management relations and

upsets, contrary to the intention of the parties, the ex-

. pectation of the parties in entering into existing col-

lective bargaining agreements. The decision of the court

below creates a substuntive law which is national in its

Scope ‘and'will, therefore, have'a detrimental effect upon

‘the sound and efficient operations of the members of

the Plumbing Council and is clearly at odds with the

longstanding case law in the State of California’(and

other states) which has enabled the parties to engage © -

in meaningful collective bargaining and mutual respon- }

sibility. The decision of the court below credtes an un-

justified “no man’s land” or “rule of the jungle” which

has never heen sanctioned or favored either by Con-

_ gress or by this Court.

” 2

Ti :

‘It. is. the intention of your Amicus. to devote; this

Brief to the discussion of the second question presented

by the Petitioner herein, to wit: ;

“Whether the United States District Courts are

. compelled, after.removal of an action from a State

court in which an injunction was granted. against

a’ labor organization, to dissolve such injunction

' because of the command of Section. 4 of the Norris-

LaGuardia Act.”

To some extent it will be necessary to make refedonds

and to touch upon the reasons raised by the other ques-

tions presented by Petitioner to this Court. . 3

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“ARGUMENT IN SUPPORT OF REASONS.

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The secision of the coli: below wrongfully but ef-

_ fectively precludes’ the issuance of State court injunc-

tive relief j in breach of coritract situations; such a result

‘is anathema to stable labor relations and contrary to the

intention ‘ ‘of Congress. The District Court below,

among other things, denied the union’s motion to quash:

the injuriction against’the union for breach: of ‘its con-

tract with Petitioner issued by the Superior Court of

“.. the State of California prior to removal of the cause of. .

the Federal District’ Court, Central District of Cali-

- fornia (Pet. Br. App. B). On appeal from this ig-.

ment the Court of Appeals for the Ninth Circuit

reversed the judgment of the District Court.’ Thi so act-

ing the Circuit Court of Appeals has, in effect, estab-

_ lished a rule of law in interpreting the relationship be-

_ tween Section 301 of the Labor-Management Relations

Act of 1947 and the scope of Section 4 of the Norris-

LaGuardia Act which is tots'ly. unjustified and ‘has seri-

ous implications to labor stability in the State of .Cali-

_ fornia and throughout the United ‘States. Moréover, '

- contrary to the assumption of the Court of Appeals,

this Court has never held, and certainly not in Sinclair

Refining Co. v: Atkinson, 370 U.S. 195 (1962) nor in

’ Avco Corp. v. Aero Lodge 735, I.A.M.,.390 U.S.. 557

(1968), that the combination - of Section 301 of the

- Labor-Management Relations Act and Section 4 of the |

_ Norris-LaGuardia Act precludes a State court’ from

exercising traditional equity. - jurisdiction to enjoin

strikes. by labor organizations in breach ‘of contracts

with employers or to require that when injunctions are

_ given by State courts in these situations, a federal dis-

‘underscores. this

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trict court to which the .action has been removed, ‘is

compelled to dissolve such. an injunction. Indeéd, this

court in Avco specifically recognized that it was re-

serving decisions on such questions (390 U,S. at 56],

fn. 4). The instant tase squarely nea these very

_ important questions.

Congress, in enacting Section 301, faeilty never in-

tended to revoke the power of state courts: to enjoin

breaches of collective bargining agreements. The legis-

—~\ lative history of the enactment ‘of Section 301 not only

fact but clearly shows that Congress .

was cognizant that many states were exercising the

. traditional powers of va to enjoin contract violations

and that some states

faws to secure union.responsibility for breaches of no-

strike provisions in their contracts. I Leg. His. of the

deed, one Senate bill (No. 1126) originally contem-

4 plated that states. would no longer have the power to

enjoin contract. violations on the premise that states

should not act in those-areas where the N.L.R.B. has

asserted jurisdiction. In the end, however, Congress—

with full knowledge that a number of states granted:

' injunctive -relief—decided that these .situations should

be “left to the usual processes of the law.”’ Ibid. This:

court in Dowd Box Co. v. Courtney, 388 U.S. 502

fe 1962.) recognized that the ‘legislative history of Sec-

“ tion 301 clearly testifies to the fact that Congress in-

-tended to permit state courts to exercise all their then |

present rights to adjudicate disputes , between parties in

relation to labor agreements and that Congress did not

intend to take any jurisdiction away from state courts.

specifically enacted’ their own.

" Labor-Management Relations Act 423-24 (1947). In-

This Court ‘has subsequently Secoigtitnet'n not only the

need to accommodate Section 301 to state court practices

‘but to continue to permit state courts to exercise their

traditional authority in this area unless such jurisdic- .

tional action undermines the intent of Congress in en-

acting Section 301. Cf. International Union v: Hoosier

Cardinal Corp., 383 U.S. 696 (1966); C, D. Drauck-

er, Inc. v. I nternational Union of Operating Engineers,

350 F. 24 936 (1965), cert, den., 384 U.S. 904 (1966).

In the face of the recognized ‘legislative history how

could it reasonably be contended that Section 301 denies

state courts the power to grant injurictive relief? And,

wes if federal courts must automatically dissolve state court

injunctions when the cases are removed, this would be

the effect. It must’ be emphasized that the Norris-La-

Guardia Act, which is. clearly addressed solely to the

federal judiciary and is limited to prohibiting federal

courts from issuing injunctions, can only reach the

state judiciary (if it can do so at all) indirectly through

Section 301. It cannot travel the tong journey by its -

own strength alone. .

The decision of the Court of Appeals. in the binant

_ case is Clearly in conflict with the holding of the Court

of Appeals for the Fifth Circuit in New Orleans Ss team-

ship Association v. General Longshore Workers, ILA, _

Local Union, 389 F. 2d 369 (5th Cir., 1958); cert.

den. 393 U.S. 828. In that case an arbitration award

directed the unions and their members to desist from

work stoppages; these stoppages, however, continued.

— caer

The Fifth Circuit held that federal courts had jurisdic-

tion to enforce the award, even though admittedly the

“end result is the same” as granting air ordinary 1 injunc-

tion. ‘The Court thought the logic of the national arbi+

=éé

tration policy required this,““otherwise one of the par-

ties to a collective bargaining agreement containing

arbitration and-no-strike or work stoppage: clauses has

a hollow right indeed.”

‘In the present situation; also, an employer. hho a

“holfow right” if he may not secure help from a state

court to enjoin that whicli the union has freely con-—

sented to when it entered into the collective bargaining

agreement. —

There is no difference in law, substance or’ equity

between the instant circumstance and that presented in

’ New Orleans Steamship Association. In both, an injunc-

tion is issued against a breach of the contract. In the

latter the federal court actually issues an injunction

against a strike or work stoppage in the guise of en-

forcing an arbitration award. In the former the in-

junction has already been granted by the state court. |

The federal court is required to do nothing it t merely

declines to take any action. ; :

Surely, if in the one case, it is said that. the Norris-

LaGuardia Act does not proscribe the positive action

of the federal court, how may it be contended that it

prohibits its negative action?

_ The dissenting opinion in S SEE cited what it terms

a leading state decision holding that states remain free

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to apply: their injunctive remedies against concerted ac-

" tivities in breach of contract, McCarroll v. L.A. County

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Dist. Council, 49 Cal. 2d 45, 315 P. 2d 322 (1957).

‘In that case Justice Traynor speaking for the California

Supreme Court, after reviewing Textile W orkers Union

zw. Lincoln Mills, 353 U.S. 448 (1957) stated:

“State Courts therefore have concurrent jurisdic-_

"tion with federal courts over actions that can be

brought i in the federal courts under section 301. It

is obvious that i in exércising this jurisdiction state

courts are no longer free to apply, state law, but

must’ apply the federal law of collective bargaining

agreements, otherwise the scope of the litigants’

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‘rights will depend on the accident: ‘of the forum in .

. which the action is brought. . so P

“It can be argued that since federal courts in

actions brought under 301 cannot enjoin strikes in —

_ breach of a collective bargaining agreement because —

of the prohibitions of the Norris-LaGuardia Act

(citation), state courts enforcing rights created by

. 301 likewise cannot issue an injunction and give a

remedy not available in the federal courts. .

“Tf it is assumed that federal courts cannot en- ;

| join strikes in actions under section 301 save in

compliance with the strict requirements of the

5 Norris-LaGuardia Act, state courts enforcing. fed-

- eral rights are not necessarily subject to the same

restraint. In the first place it’is not entirely clear

that Congress can compel a state court to withhold

a remedy that would be available if the action arose .

‘under a contract law of the state. Congress can

" compel a state court to enforce a federal right and

give a prescribed ‘remedy when it is essential to

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the full realization of the right, and the ‘state court ©

. would be competent under ‘its own law to give a

remedy of like chafacter for a right based on state

a .

“A state court wines a -federal right is not

is simply another federal court..:

; “The difficulties that stihere in the question of 7

| congfe essiofial power to control equitable remedies

‘ available in state courts strengthen our conviction

that, whether or not Congress could deprive -state ~

courts of the powér to give such remedies when en-

forcing collective bargaining agreements, it has not

attempted to'do so either in. the N orrie-LaGuardia

-Act or section 301. Pe

“The Norris-LaGuardia Act is in terms drawn

as a limitation on the courts of¢the United States.

. . The stafute aimed to restrict the federal equity

power, and was justified constitutionally on .the

basis’ of Congress’ power to regulate ‘the jurisdic-

tion of the federal-courts: . . . It did not limit the

: remedial power of tha state: courts ..:. and could |

not constitutionally have done so sis its prohibi-

tion was not restricted to injunctions in labor dis-

‘ putes affecting interstate commerce or any other.

| subject over which Congress has. Poremayat

power. (Emphasis added).

“Section 301 of the Labor Management: Rela-

tions Act does not embody any policy that requires

_ a State court enforcing rights created by that sec-

- tion to withhold injunctive relief. The principal pur-

pose of section 30] was to facilitate the enforcement

of collective bargaining agreements by making unions

suable as entities in the federal courts, and there-

by to remedy the one-sided* character of existing .

labor legislation. We ‘would give altogether too

tron a twist to this purpose.tf we held that the ac-

tual.effect of the legislation was to abolish in-state

court equitable remedies that had been available,

and leave an employer in a worse. position in re- —

spect to the effective enforcement of his contract

. than he was before the enactment of section 301"

(emphasis added). ° &

“Nothing in the nature of thé rights cated by |

section 301 requires that injunctive relief be al

nied in their enforcement. .

} “Fi inally, there is no invariable requirement, im-

plicit in the federal system, that a state court en-

_ forcing a federal right must not go beyond: the

.«, remedies available in a federal court. Uniformity in |

the determination of the substantive federal right

. ‘itself is:no doubt a necessity, but such uniformity

is not. threatened because .a state-court can give a

.7 more ‘complete-and effective remedy.”

Justice Traynor’s well-reasoned opinion .was clearly ig-

nored by the Ninth Circuit; yet the McCarroll case

logically shguld be adopted by this court." _

Conclusion.

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In enacting Section 301, Congress has done ida

to interfere with a state’s traditional equity power to

~ enjoin a breach of collective bargaining agreement. If

the suite is transferred to a federal district court, the

latter fs not called upon to take any action in excess of

its authority. To the contrary, all it has to do is merely

decline to interfere with the already existing state in-

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- junction. This is in keeping with federal-state concur:

rent jurisdiction, as discussed above. This abserice of

judicial action does not in any way conflict with the pro-.

hibitions of the Norris-LaGuardia Act. Finally, the

resultant enforcing of the terms of the collective bar-

gaining agreement is exactly the purpose that Con-

gress had in mind when it enacted Section-301. The de-

cision of the Court of Appeals for the Ninth Circuit

erroneously failed to recognize or adopt these pre-

cepts. | ; :

: Respectfully submitted,

Hit, Farrer & Burritt, -

Cart-M. Goutp, _ ae

STANLEY.E. Tosin,

we -. By STANLEY E. ToBrn;

Attorneys hl Amicus Curiae.

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