author: Mr. Justice Brennan Mr. Justice Stewart, Mr. Justice Black,

text:
    BOYS MARKETS, INC. v. RETAIL CLERKS UNION, LOCAL 770
    No. 768.
    Argued April 21-22, 1970
    Decided June 1, 1970

      Joseph M. McLaughlin argued the cause and filed briefs for petitioner.

      Kenneth M. Schwartz argued the cause for respondent. With him on the brief were Laurence D. Steinsapir and Robert M. Dohrmann.

      Briefs of amici curiae were filed by William H. Willcox and Lawrence M. Cohen for the Chamber of Commerce of the United States; by George R. Fear on for Associated Industries of New York State, Inc.; by John E. Branch and James Pulm Swann, Jr., for General Electric Co.; by Carl M. Gould and Stanley E. Tobin for the Plumbing-Heating & Piping Employers Council of Southern California, Inc.; by Harold I. Elbert for Peabody Coal Co.; and by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations.
   Mr. Justice Brennan

delivered the opinion of the Court.

In this case we re-examine the holding of Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962), that the anti-injunction provisions of the Norris-LaGuardia Act preclude a federal district court from enjoining a strike in breach of a no-strike obligation under a collective-bargaining agreement, even though that agreement contains provisions, enforceable under § 301 (a) of the Labor Management Relations Act, 1947, for binding arbitration of the grievance dispute concerning which the strike was called. The Court of Appeals for the Ninth Circuit, considering itself bound by Sinclair, reversed the grant by the District Court for the Central District of California of petitioner’s prayer for injunctive relief. 416 F. 2d 368 (1969). We granted certiorari. 396 U. S. 1000 (1970). Having concluded that Sinclair was erroneously decided and that subsequent events have undermined its continuing validity, we overrule that decision and reverse the judgment of the Court of Appeals.

I

In February 1969, at the time of the incidents that produced this litigation, petitioner and respondent were parties to a collective-bargaining agreement which provided, inter alia, that all controversies concerning its interpretation or application should be resolved by adjustment and arbitration procedures set forth therein and that, during the life of the contract, there should be “no cessation or stoppage of work, lock-out, picketing or boycotts . The dispute arose when petitioner’s frozen foods supervisor and certain members of his crew who were not members of the bargaining unit began to rearrange merchandise in the frozen food cases of one of petitioner’s supermarkets. A union representative insisted that the food cases be stripped of all merchandise and be restocked by union personnel. When petitioner did not accede to the union’s demand, a strike was called and the union began to picket petitioner’s establishment. Thereupon petitioner demanded that the union cease the work stoppage and picketing and sought to invoke the grievance and arbitration procedures specified in the contract.

The following day, since the strike had not been terminated, petitioner filed a complaint in California Superior Court seeking a temporary restraining order, a preliminary and permanent injunction, and specific performance of the contractual arbitration provision. The state court issued a temporary restraining order forbidding continuation of the strike and also an order to show cause why a preliminary injunction should not be granted. Shortly thereafter, the union removed the case to the Federal District Court and there made a motion to quash the state court’s temporary restraining order. In opposition, petitioner moved for an order compelling arbitration and enjoining continuation of the strike. Concluding that the dispute was subject to arbitration under the collective-bargaining agreement and that the strike was in violation of the contract, the District Court ordered the parties to arbitrate the underlying dispute and simultaneously enjoined the strike, all picketing in the vicinity of petitioner’s supermarket, and any attempts by the union to induce the employees to strike or to refuse to perform their services.

II

At the outset, we are met with respondent’s contention that Sinclair ought not to be disturbed because the decision turned on a question of statutory construction which Congress can alter at any time. Since Congress has not modified our conclusions in Sinclair, even though it has been urged to do so, respondent argues that principles of stare decisis should govern the present case.

We do not agree that the doctrine of stare decisis bars a re-examination of Sinclair in the circumstances of this case. We fully recognize that important policy considerations militate in favor of continuity and predictability in the law. Nevertheless, as Mr. Justice Frankfurter wrote for the Court, “[Sitare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.” Helvering v. Hallock, 309 U. S. 106, 119 (1940). See Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965). It is precisely because Sinclair stands as a significant departure from our otherwise consistent emphasis upon the congressional policy to promote the peaceful settlement of labor disputes through arbitration and our efforts to accommodate and harmonize this policy with those underlying the anti-injunction provisions of the Norris-LaGuardia Act that we believe Sinclair should be reconsidered. Furthermore, in light of developments subsequent to Sinclair, in particular our decision in Avco Corp. v. Aero Lodge 735, 390 U. S. 557 (1968), it has become clear that the Sinclair decision does not further but rather frustrates realization of an important goal of our national labor policy.

Nor can we agree that conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that “[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.” Girouard v. United States, 328 U. S. 61, 69 (1946). Therefore, in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to reconsider the decision. Helvering v. Hallock, supra, at 119-120.

Ill

From the time Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957), was decided, we have frequently found it necessary to consider various substantive and procedural aspects of federal labor contract law and questions concerning its application in both state and federal courts. Lincoln Mills held generally that “the substantive law to apply in suits under § 301 (a) is federal law, which the courts must fashion from the policy of our national labor laws,” 353 U. S., at 456, and more specifically that a union can obtain specific performance of an employer’s promise to arbitrate grievances. We rejected the contention that the anti-injunction proscriptions of the Norris-LaGuardia Act prohibited this type of relief, noting that a refusal to arbitrate was not “part and parcel of the abuses against which the Act was aimed,” id., at 458, and that the Act itself manifests a policy determination that arbitration should be encouraged. See 29 U. S. C. § 108. Subsequently in the Steelworkers Trilogy we emphasized the importance of arbitration as an instrument of federal policy for resolving disputes between labor and management and cautioned the lower courts against usurping the functions of the arbitrator.

Serious questions remained, however, concerning the role that state courts were to play in suits involving collective-bargaining agreements. Confronted with some of these problems in Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962), we held that Congress clearly intended not to disturb the pre-existing jurisdiction of the state courts over suits for violations of collective-bargaining agreements. We noted that the

“clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations.” Id., at 511.

Shortly after the decision in Dowd Box, we sustained, in Teamsters Local 174 v. Lucas Flour Co., 369 U. S. 95 (1962), an award of damages by a state court to an employer for a breach by the union of a no-strike provision in its contract.. While emphasizing that “in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules,” id., at 104, we did not consider the applicability of the Norris-LaGuardia Act to state court proceedings because the employer’s prayer for relief sought only damages and not specific performance of a no-strike obligation.

Subsequent to the decision in Sinclair, we held in Avco Corp. v. Aero Lodge 735, supra, that § 301 (a) suits initially brought in state courts may be removed to the designated federal forum under the federal question removal jurisdiction delineated in 28 U. S. C. § 1441. In so holding, however, the Court expressly left open the questions whether state courts are bound by the anti-injunction proscriptions of the Norris-LaGuardia Act and whether federal courts, after removal of a § 301 (a) action, are required to dissolve any injunctive relief previously granted by the state courts. See generally General Electric Co. v. Local Union 191, 413 F. 2d 964 (C. A. 5th Cir. 1969) (dissolution of state injunction required). Three Justices who concurred expressed the view that Sinclair should be reconsidered “upon an appropriate future occasion.” 390 U. S., at 562 (Stewart, J., concurring).

The decision in Avco, viewed in the context of Lincoln Mills and its progeny, has produced an anomalous situation which, in our view, makes urgent the reconsideration of Sinclair. The principal practical effect of Avco and Sinclair taken together is nothing less than to oust state courts of jurisdiction in § 301 (a) suits where injunc-tive relief is sought for breach of a no-strike obligation. Union defendants can, as a matter of course, obtain removal to a federal court, and there is obviously a compelling incentive for them to do so in order to gain the advantage of the strictures upon injunctive relief which Sinclair imposes on federal courts. The sanctioning of this practice, however, is wholly inconsistent with our conclusion in Dowd Box that the congressional purpose embodied in § 301 (a) was to supplement, and not to encroach upon, the pre-existing jurisdiction of the state courts. It is ironic indeed that the very provision that Congress clearly intended to provide additional remedies for breach of collective-bargaining agreements has been employed to displace previously existing state remedies. We are not at liberty thus to depart from the clearly expressed congressional policy to the contrary.

On the other hand, to the extent that widely disparate remedies theoretically remain available in state, as opposed to federal, courts, the federal policy of labor law uniformity elaborated in Lucas Flour Co., is seriously offended. This policy, of course, could hardly require, as a practical matter, that labor law be administered identically in all courts, for undoubtedly a certain diversity exists among the state and federal systems in matters of procedural and remedial detail, a fact that Congress evidently took into account in deciding not to disturb the traditional jurisdiction of the States. The injunction, however, is so important a remedial device, particularly in the arbitration context, that its availability or nonavailability in various courts will not only produce rampant forum shopping and maneuvering from one court to another but will also greatly frustrate any relative uniformity in the enforcement of arbitration agreements.

Furthermore, the existing scheme, with the injunction remedy technically available in the state courts but rendered inefficacious by the removal device, assigns to removal proceedings a totally unintended function. While the underlying purposes of Congress in providing for federal question removal jurisdiction remain somewhat obscure, there has never been a serious contention that Congress intended that the removal mechanism be utilized to foreclose completely remedies otherwise available in the state courts. Although federal question removal jurisdiction may well have been intended to provide a forum for the protection of federal rights where such protection was deemed necessary or to encourage the development of expertise by the federal courts in the interpretation of federal law, there is no indication that Congress intended by the removal mechanism to effect a wholesale dislocation in the allocation of judicial business between the state and federal courts. Cf. City of Greenwood v. Peacock, 384 U. S. 808 (1966).

It is undoubtedly true that each of the foregoing objections to Sinclair-Avco could be remedied either by overruling Sinclair or by extending that decision to the States. While some commentators have suggested that the solution to the present unsatisfactory situation does lie in the extension of the Sinclair prohibition to state court proceedings, we agree with Chief Justice Traynor of the California Supreme Court that “whether or not Congress could deprive state courts of the power to give such [injunctive] remedies when enforcing collective bargaining agreements, it has not attempted to do so either in the Norris-LaGuardia Act or section 301.” McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal. 2d 45, 63, 315 P. 2d 322, 332 (1957), cert. denied, 355 U. S. 932 (1958). See, e. g., American Dredging Co. v. Marine Local 25, 338 F. 2d 837 (C. A. 3d Cir. 1964), cert. denied, 380 U. S. 935 (1965); Shaw Electric Co. v. I. B. E. W., 418 Pa. 1, 208 A. 2d 769 (1965).

An additional reason for not resolving the existing dilemma by extending Sinclair to the States is the devastating implications for the enforceability of arbitration agreements and their accompanying no-strike obligations if equitable remedies were not available. As we have previously indicated, a no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. See Textile Workers Union v. Lincoln Mills, supra, at 455. Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated. While it is of course true, as respondent contends, that other avenues of redress, such as an action for damages, would remain open to an aggrieved employer, an award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union.

Even if management is not encouraged by the unavailability of the injunction remedy to resist arbitration agreements, the fact remains that the effectiveness of such agreements would be greatly reduced if injunctive relief were withheld. Indeed, the very purpose of arbitration procedures is to provide a mechanism for the expeditious settlement of industrial disputes without resort to strikes, lockouts, or other self-help measures. This basic purpose is obviously largely undercut if there is no immediate, effective remedy for those very tactics that arbitration is designed to obviate. Thus, because Sinclair, in the aftermath of Avco, casts serious doubt upon the effective enforcement of a vital element of stable labor-management relations — arbitration agreements with their attendant no-strike obligations — we conclude that Sinclair does not make a viable contribution to federal labor policy.

IV

We have also determined that the dissenting opinion in Sinclair states the correct principles concerning the accommodation necessary between the seemingly absolute terms of the Norris-LaGuardia Act and the policy considerations underlying § 301 (a). 370 U. S., at 215. Although we need not repeat all that was there said, a few points should be emphasized at this time.

The literal terms of § 4 of the Norris-LaGuardia Act must be accommodated to the subsequently enacted provisions of § 301 (a) of the Labor Management Relations Act and the purposes of arbitration. Statutory interpretation requires more than concentration upon isolated words; rather, consideration must be given to the total corpus of pertinent law and the policies that inspired ostensibly inconsistent provisions. See Richards v. United States, 369 U. S. 1, 11 (1962); Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 285 (1956); United States v. Hutcheson, 312 U. S. 219, 235 (1941).

The Norris-LaGuardia Act was responsive to a situation totally different from that which exists today. In the early part of this century, the federal courts generally were regarded as allies of management in its attempt to prevent the organization and strengthening of labor unions; and in this industrial struggle the injunction became a potent weapon that was wielded against the activities of labor groups. The result was a large number of sweeping decrees, often issued ex parte, drawn on an ad hoc basis without regard to any systematic elaboration of national labor policy. See Drivers’ Union v. Lake Valley Co., 311 U. S. 91, 102 (1940).

In 1932 Congress attempted to bring some order out of the industrial chaos that had developed and to correct the abuses that had resulted from the interjection 6f the federal judiciary into union-management disputes on the behalf of management. See declaration of public policy, Norris-LaGuardia Act, § 2, 47 Stat. 70. Congress, therefore, determined initially to limit severely the power of the federal courts to issue injunctions “in any case involving or growing out of any labor dispute . . . § 4, 47 Stat. 70. Even as initially enacted, however, the prohibition against federal injunctions was by no means absolute. See Norris-LaGuardia Act, §§ 7, 8, 9, 47 Stat. 71, 72. Shortly thereafter Congress passed the Wagner Act, designed to curb various management activities that tended to discourage employee participation in collective action.

As labor organizations grew in strength and developed toward maturity, congressional emphasis shifted from protection of the nascent labor movement to the encouragement of collective bargaining and to administrative techniques for the peaceful resolution of industrial disputes. This shift in emphasis was accomplished, however, without extensive revision of many of the older enactments, including the anti-injunction section of the Norris-LaGuardia Act. Thus it became the task of the courts to accommodate, to reconcile the older statutes with the more recent ones.

A leading example of this accommodation process is Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. Co., 353 U. S. 30 (1957). There we were confronted with a peaceful strike which violated the statutory duty to arbitrate imposed by the Railway Labor Act. The Court concluded that a strike in violation of a statutory arbitration duty was not the type of situation to which the Norris-LaGuardia Act was responsive, that an important federal policy was involved in the peaceful settlement of disputes through the statutorily mandated arbitration procedure, that this important policy was imperiled if equitable remedies were not available to implement it, and hence that Norris-LaGuardia’s policy of nonintervention by the federal courts should yield to the overriding interest in the successful implementation of the arbitration process.

The principles elaborated in Chicago River are equally applicable to the present case. To be sure, Chicago River involved arbitration procedures established by statute. However, we have frequently noted, in such cases as Lincoln Mills, the Steelworkers Trilogy, and Lucas Flour, the importance that Congress has attached generally to the voluntary settlement of labor disputes without resort to self-help and more particularly to arbitration as a means to this end. Indeed, it has been stated that Lincoln Mills, in its exposition of § 301 (a), “went a long way towards making arbitration the central institution in the administration of collective bargaining contracts.”

The Sinclair decision, however, seriously undermined the effectiveness of the arbitration technique as a method peacefully to resolve industrial disputes without resort to strikes, lockouts, and similar devices. Clearly employers will be wary of assuming obligations to arbitrate specifically enforceable against them when no similarly efficacious remedy is available to enforce the concomitant undertaking of the union to refrain from striking. On the other hand, the central purpose of the Norris-LaGuar-dia Act to foster the growth and viability of labor organizations is hardly retarded — if anything, this goal is advanced — by a remedial device that merely enforces the obligation that the union freely undertook under a specifically enforceable agreement to submit disputes to arbitration. We conclude, therefore, that the unavailability of equitable relief in the arbitration context presents a serious impediment to the congressional policy favoring the voluntary establishment of a mechanism for the peaceful resolution of labor disputes, that the core purpose of the Norris-LaGuardia Act is not sacrificed by the limited use of equitable remedies to further this important policy, and consequently that the Norris-LaGuardia Act does not bar the granting of injunctive relief in the circumstances of the instant case.

V

Our holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act. We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair suggested the following principles for the guidance of the district courts in determining whether to grant injunctive relief — principles that we now adopt:

“A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunc-tive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity — whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.” 370 U. S., at 228. (Emphasis in original.)

In the present case there is no dispute that the grievance in question was subject to adjustment and arbitration under the collective-bargaining agreement and that the petitioner was ready to proceed with arbitration at the time an injunction against the strike was sought and obtained. The District Court also concluded that, by reason of respondent’s violations of its no-strike obligation, petitioner “has suffered irreparable injury and will continue to suffer irreparable injury.” Since we now overrule Sinclair, the holding of the Court of Appeals in reliance on Sinclair must be reversed. Accordingly, we reverse the judgment of the Court of Appeals and remand the case with directions to enter a judgment affirming the order of the District Court.

It is so ordered.

Mr. Justice Marshall took no part in the decision of this case.

Mr. Justice Stewart,

concurring.

When Sinclair Refining Co. v. Atkinson, 370 U. S. 195, was decided in 1962, I subscribed to the opinion of the Court. Before six years had passed I had reached the conclusion that the Sinclair holding should be reconsidered, and said so in Avco Corp. v. Aero Lodge 735, 390 U. S. 557, 562 (concurring opinion). Today I join the Court in concluding “that Sinclair was erroneously decided and that subsequent events have undermined its continuing validity.”

In these circumstances the temptation is strong to embark upon a lengthy personal apologia. But since Mr. Justice Brennan has so clearly stated my present views in his opinion for the Court today, I simply join in that opinion and in the Court’s judgment. An aphorism of Mr. Justice Frankfurter provides me refuge: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Bank, 335 U. S. 595, 600 (dissenting opinion).

Mr. Justice Black,

dissenting.

Congress in 1932 enacted the Norris-LaGuardia Act, § 4 of which, 29 U. S. C. § 104, with exceptions not here relevant, specifically prohibited federal courts in the broadest and most comprehensive language from issuing any injunctions, temporary or permanent, against participation in a labor dispute. Subsequently, in 1947, Congress gave jurisdiction to the federal courts in “[s]uits for violation of contracts between an employer and a labor organization.” Although this subsection, § 301 (a) of the Taft-Hartley Act, 29 U. S. C. § 185 (a), explicitly waives the diversity and amount-in-controversy requirements for federal jurisdiction, it says nothing at all about granting injunctions. Eight years ago this Court considered the relation of these two statutes: after full briefing and argument, relying on the language and history of the Acts, the Court decided that Congress did not wish this later statute to impair in any way Norris-LaGuardia’s explicit prohibition against injunctions in labor disputes. Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962).

Although Congress has been urged to overrule our holding in Sinclair, it has steadfastly refused to do so. Nothing in the language or history of the two Acts has changed. Nothing at all has changed, in fact, except the membership of the Court and the personal views of one Justice. I remain of the opinion that Sinclair was correctly decided, and, moreover, that the prohibition of the Norris-LaGuardia Act is close to the heart of the entire federal system of labor regulation. In my view Sinclair should control the disposition of this case.

Even if the majority were correct, however, in saying that Sinclair misinterpreted the Taft-Hartley and Norris-LaGuardia Acts, I should be compelled to dissent. I believe that both the making and the changing of laws which affect the substantial rights of the people are primarily for Congress, not this Court. Most especially is this so when the laws involved are the focus of strongly held views of powerful but antagonistic political and economic interests. The Court’s function in the application and interpretation of such laws must be carefully limited to avoid encroaching on the power of Congress to determine policies and make laws to carry them out.

When the Court implies that the doctrine called stare decisis rests solely on “important policy considerations ... in favor of continuity and predictability in the law,” it does not tell the whole story. Such considerations are present and, in a field as delicate as labor relations, extremely important. Justice Brandéis said, dissenting in Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932):

“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”

In the ordinary case, considerations of certainty and the equal treatment of similarly situated litigants will provide a strong incentive to adhere to precedent.

When this Court is interpreting a statute, however, an additional factor must be weighed in the balance. It is the deference that this Court owes to the primary responsibility of the legislature in the making of laws. Of course, when this Court first interprets a statute, then the statute becomes what this Court has said it is. See Gulf, C. & S. F. R. Co. v. Moser, 275 U. S. 133, 136 (1927). Such an initial interpretation is proper, and unavoidable, in any system in which courts have the task of applying general statutes in a multitude of situations. B. Cardozo, The Nature of the Judicial Process 112-115 (1921). The Court undertakes the task of interpretation, however, not because the Court has any special ability to fathom the intent of Congress, but rather because interpretation is unavoidable in the decision of the case before it. When the law has been settled by an earlier case then any subsequent “reinterpretation” of the statute is gratuitous and neither more nor less than an amendment: it is no different in effect from a judicial alteration of language that Congress itself placed in the statute.

Altering the important provisions of a statute is a legislative function. And the Constitution states simply and unequivocally: “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .” U. S. Const. Art. I. It is the Congress, not this Court, that responds to the pressures of political groups, pressures entirely proper in a free society. It is Congress, not this Court, that has the capacity to investigate the divergent considerations involved in the management of a complex national labor policy. And it is Congress, not this Court, that is elected by the people. This Court should, therefore, interject itself as little as possible into the law-making and law-changing process. Having given our view on the meaning of a statute, our task is concluded, absent extraordinary circumstances. When the Court changes its mind years later, simply because the judges have changed, in my judgment, it takes upon itself the function of the legislature.

The legislative effect of the Court’s reversal is especially clear here. In Sinclair the Court invited Congress to act if it should be displeased with the judicial interpretation of the statute. We said, 370 U. S., at 214-215:

“Strong arguments are made to us that it is highly desirable that the Norris-LaGuardia Act be changed in the public interest. If that is so, Congress itself might see fit to change that law and repeal the anti-injunction provisions of the Act insofar as suits for violation of collective agreements are concerned, as the House bill under consideration originally provided. It might, on the other hand, decide that if injunctions are necessary, the whole idea of enforcement of these agreements by private suits should be discarded in favor of enforcement through the administrative machinery of the Labor Board, as Senator Taft provided in his Senate bill. Or it might decide that neither of these methods is entirely satisfactory and turn instead to a completely new approach. The question of what change, if any, should be made in the existing law is one of legislative policy properly within the exclusive domain of Congress — it is a question for lawmakers, not law interpreters.”

Commentators on our holding found this invitation to legislative action clear, and judicial self-restraint proper. See Dunau, Three Problems in Labor Arbitration, 55 Va. L. Rev. 427, 464-465 (1969); Wellington & Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson, 72 Yale L. J. 1547, 1565-1566 (1963). Bills were introduced in Congress seeking to effect a legislative change. S. 2132, 89th Cong., 1st Sess. (1965); H. R. 9059, 89th Cong., 1st Sess. (1965). Congress, however, did not act, thus indicating at least a willingness to leave the law as Sinclair had construed it. It seems to me highly inappropriate for this Court now, eight years later, in effect to enact the amendment that Congress has refused to adopt. Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953); see also United States v. International Boxing Club of New York, Inc., 348 U. S. 236, 242-244 (1955).

I do not believe that the principle of stare decisis forecloses all reconsiderations of earlier decisions. In the area of constitutional law, for example, where the only alternative to action by this Court is the laborious process of constitutional amendment and where the ultimate responsibility rests with this Court, I believe reconsideration is always proper. See James v. United States, 366 U. S. 213, 233-234 (1961) (separate opinion of Black, J.). Even on statutory questions the appearance of new facts or changes in circumstances might warrant re-examination of past decisions in exceptional cases under exceptional circumstances. In the present situation there are no such circumstances. Congress has taken no action inconsistent with our decision in Sinclair. Girouard v. United States, 328 U. S. 61, 70 (1946). And, although bills have been introduced, cf. Helvering v. Hallock, 309 U. S. 106, 119-120 (1940), Congress has declined the invitation to act.

The only “subsequent event” to which the Court can point is our decision in Avco Corp. v. Aero Lodge 735, 390 U. S. 557 (1968). The Court must recognize that the holding of Avco is in no way inconsistent with Sinclair. As we said in Avco, supra, at 561: “The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy.” The Court contends, however, that the result of the two cases taken together is the “anomalous situation” that no-strike clauses become unenforceable in state courts, and this is inconsistent with “an important goal of our national labor policy.”

Avco does make any effort to enforce a no-strike clause in a state court removable to a federal court, but it does not follow that the no-strike clause is unenforceable. Damages may be awarded; the union may be forced to arbitrate. And the employer may engage in self-help. The Court would have it that these techniques are less effective than an injunction. That is doubtless true. But the harshness and effectiveness of injunctive relief- — and opposition to “government by injunction” — were the precise reasons for the congressional prohibition in the Norris-LaGuardia Act. The effect of the Avco decision is, indeed, to highlight the limited remedial powers of federal courts. But if the Congress is unhappy with these powers as this Court defined them, then the Congress may act; this Court should not. The members of the majority have simply decided that they are more sensitive to the “realization of an important goal of our national labor policy” than the Congress or their predecessors on this Court.

The correct interpretation of the Taft-Hartley Act, and even the goals of “our national labor policy,” are less important than the proper division of functions between the branches of our Federal Government. The Court would do well to remember the words of John Adams, written in the Declaration of Rights in the Constitution of the Commonwealth of Massachusetts:

“The judicial [department] shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

I dissent.

MR. Justice White dissents for the reasons stated in the majority opinion in Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962).

       “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
      “ (a) Ceasing or refusing to perform any work or to remain in any relation of employment;

      “(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
      “ (f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;

      “(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified . . . .” § 4, 47 Stat. 70, 29 U. S. C. § 104.

       “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 61 Stat. 156, 29 U. S. C. § 185 (a).

       “ARTICLE XIV “ADJUSTMENT AND ARBITRATION
      “A. CONTROVERSY, DISPUTE OR DISAGREEMENT.
      “Any and all matters of controversy, dispute or disagreement of any kind or character existing between the parties and arising out of or in any way involving the interpretation or application of the terms of this Agreement . . . [with certain exceptions not relevant to the instant case] shall be settled and resolved by the procedures and in the manner hereinafter set forth.
      “B. ADJUSTMENT PROCEDURE.

      “C. ARBITRATION.
      “1. Any matter not satisfactorily settled or resolved in Paragraph B hereinabove shall be submitted to arbitration for final determination upon written demand of either party. . . .

      “4. The arbitrator or board of arbitration shall be empowered to hear and determine the matter in question and the determination shall be final and binding upon the parties, subject only to their rights under law. . .

       “D. POWERS, LIMITATIONS AND RESERVATIONS.

        “2. Work Stoppages. Matters subject to the procedures of this Article shall be settled and resolved in the manner provided herein. During the term of this Agreement, there shall be no cessation or stoppage of work, lock-out, picketing or boycotts, except that this limitation shall not be binding upon either party hereto if the other party refuses to perform any obligation under this Article or refuses or fails to abide by, accept or perform a decision or award of an arbitrator or board.”

       See, e. g., Report of Special Atkimon-Sinclair Committee, A. B. A. Labor Relations Law Section — Proceedings 226 (1963) [hereinafter cited as A. B. A. Sinclair Report].

       See, e. g., United Steelworkers of America v. American Mfg. Co., 363 U. S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U. S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960); Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957).

       See, e. g., Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. Co., 353 U. S. 30 (1957); Textile Workers Union v. Lincoln Mills, supra; cf. Graham v. Brotherhood of Firemen, 338 U. S. 232 (1949). See also United States v. Hutcheson, 312 U. S. 219 (1941).

       Section 108 provides:
      “No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.”
      See generally Brotherhood of Railroad Trainmen v. Toledo, Peoria & W. R. Co., 321 U. S. 50 (1944).

        United Steelworkers of America v. American Mfg. Co., supra; United Steelworkers of America v. Warrior & Gulf Nav. Co., supra; United Steelworkers of America v. Enterprise Wheel & Car Corp., supra.

       Shortly after Sinclair was decided, an erosive process began to weaken its underpinnings. Various authorities suggested methods of mitigating the absolute rigor of the Sinclair rule. For example, the Court of Appeals for the Fifth Circuit held that Sinclair does not prevent a federal district court from enforcing an arbitrator’s order directing a union to terminate work stoppages in violation of a no-strike clause. New Orleans Steamship Assn. v. General Longshore Workers, 389 F. 2d 369, cert. denied, 393 U. S. 828 (1968); see Pacific Maritime Assn. v. International Longshoremen, 304 F. Supp, 1316 (D. C. N, D. Cal. 1969). See generally Keene, The Supreme Court, Section 301 and No-Strike Clauses: From Lincoln Mills to Avco and Beyond, 15 Vill. L. Rev. 32 (1969).

       Section 301 (a) suits require neither the existence of diversity of citizenship nor a minimum jurisdictional amount in controversy. All § 301 (a) suits may be removed pursuant to 28 TJ. S. C. § 1441.

       The view that state court jurisdiction would not be disturbed by § 301 (a) was perhaps most clearly articulated by Senator Ferguson, a spokesman for that provision, in a Senate debate in 1946:
      “Mr. FERGUSON. Mr. President, there is nothing whatever in the now-being-considered amendment which takes away from the State courts all the present rights of the State courts to adjudicate the rights between parties in relation to labor agreements. The amendment merely says that the Federal courts shall have jurisdiction. It does not attempt to take away the jurisdiction of the State courts, and the mere fact that the Senator and I disagree does not change the effect of the amendment.
      “Mr. MURRAY. But it authorizes the employers to bring suit in the Federal courts, if they so desire.
      “Mr. FERGUSON. That is correct. That is all it does. It takes away no jurisdiction of the State courts.” 92 Cong. Rec. 5708.

       The legislative history of the federal question removal provision is meager, but it has been suggested that its purpose was the same as original federal question jurisdiction, enacted at the same time in the Judiciary Act of 1875, 18 Stat. 470, namely, to protect federal rights, see H. Hart & H. Wechsler, The Federal Courts and the Federal System 727-733 (1953), and to provide a forum that could more accurately interpret federal law, see Mishkin, The Federal “Question” in the District Courts, 53 Col. L. Rev. 157, 159 (1953). 113 U. Pa. L. Rev. 1096, 1098 and n. 17 (1965).

       See, e. g., Bartosic, Injunctions and Section 301: The Patchwork of Avco and Philadelphia Marine on the Fabric of National Labor Policy, 69 Col. L. Rev. 980 (1969); Dunau, Three Problems in Labor Arbitration, 55 Va. L. Rev. 427 (1969).

       It is true that about one-half of the States have enacted so-called “little Norris-LaGuardia Acts” that place various restrictions upon the granting of injunctions by state courts in labor disputes. However, because many States do not bar injunctive relief for violations of collective-bargaining agreements, in only about 14 jurisdictions is there a significant Norris-LaGuardia-type prohibition against equitable remedies for breach of no-strike obligations. See Bartosic, supra, n. 14, at 1001-1006; Keene, supra, n. 10, at 49 and nn. 79, 80.

       We held in Teamsters Local 174 v. Lucas Flour Co., supra, that, even in the absence of an express no-strike clause in the collective-bargaining contract, an agreement that certain disputes “will be exclusively covered by compulsory terminal arbitration” (369 U. S., at 106) gives rise to an implied promise by the union not to strike during the term of the contract in response to these arbitrable disputes. Id., at 104-106. In the present case, there was an express no-strike clause in the union-management contract. See n. 4, supra.

       As the neutral members of the A. B. A. committee on the problems raised by Sinclair noted in their report:
      “Under existing laws, employers may maintain an action for damages resulting from a strike in breach of contract and may discipline the employees involved. In many cases, however, neither of these alternatives will be feasible. Discharge of the strikers is often inexpedient because of a lack of qualified replacements or because of the adverse effect on relationships within the plant. The damage remedy may also be unsatisfactory because the employer’s losses are often hard to calculate and because the employer may hesitate to exacerbate relations with the union by bringing a damage action. Hence, injunctive relief will often be the only effective means by which to remedy the breach of the no-strike pledge and thus effectuate federal labor policy.” A. B. A. Sinclair Report 242.

       Scholarly criticism of Sinclair has been sharp, and it appears to be almost universally recognized that Sinclair, particularly after Avco, has produced an untenable situation. The commentators are divided, however, with respect to proposed solutions, some favoring reconsideration of Sinclair, others suggesting extension of Sinclair to the States, and still others recommending that any action in this area be left to Congress. See generally Aaron,, Strikes in Breach of Collective Agreements: Some Unanswered Questions, 63 Col. L. Rev. 1027 (1963); Aaron, The Labor Injunction Reappraised, 10 U. C, L. A. L„ Rev. 292 (1963); Bartosic,, supra, n, 14; Dunau, supra, n. 14; Keene, supra, n, 10; Kiernan, Availability of Injunctions Against Breaches of No-Strike Agreements in Labor Contracts, 32 Albany L. Rev. 303 (1968); Wellington, The No-Strike Clause and the Labor Injunction: Time for a Re-examination, 30 U. Pitt. L. Rev. 293 (1968); Wellington & Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson, 72 YaleL. J. 1547 (1963).

       See generally F. Frankfurter & N. Greene, The Labor Injunction (1930).

       National Labor Relations Act, 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq.

       Wellington & Albert, supra, n. 18, at 1557.

       As well stated by the neutral members of the A. B. A. Sinclair committee:
      “Any proposal which would subject unions to injunctive relief must take account of the Norris-LaGuardia Act and the opposition expressed in that Act to the issuing of injunctions in labor disputes. Nevertheless, the reasons behind the Norris-LaGuardia Act seem scarcely applicable to the situation ... [in which a strike in violation of a collective-bargaining agreement is enjoined]. The Act was passed primarily because of widespread dissatisfaction with the tendency of judges to enjoin concerted activities in accordance with ‘doctrines of tort law which made the lawfulness of a strike depend upon judicial views of social and economic policy.’ [Citation omitted.] Where an injunction is used against a strike in breach of contract, the union is not subjected in this fashion to judicially-created limitations on its freedom of action but is simply compelled to comply with limitations to which it has previously agreed. Moreover, where the underlying dispute is arbitrable, the union is not deprived of any practicable means of pressing its claim but is only required to submit the dispute to the impartial tribunal that it has agreed to establish for this purpose.” A. B. A. Sinclair Report 242.

      Other members of the Court have drawn the distinction between constitutional and statutory matters, and indicated that the correction of this Court’s errors in statutory interpretation is best left to Congress. For example, Mr. Justice Douglas noted in dissent in Swift & Co. v. Wickham, 382 U. S. 111, 133-134 (1965):
      “An error in interpreting a federal statute may be easily remedied. If this Court has failed to perceive the intention of Congress, or has interpreted a statute in such a manner as to thwart the legislative purpose, Congress may change it. The lessons of experience are not learned by judges alone.”
      See also United Gas Improvement Co. v. Continental Oil Co., 381 U. S. 392, 406 (1965) (Douglas, J., dissenting). Apparently, however, some members of the Court are willing to give greater weight to stare decisis in constitutional than in statutory matters. See, e. g., Orozco v. Texas, 394 U. S. 324, 327-328 (1969) (Harlan, J., concurring).


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Black,

license: Public Domain

text:
    MAXWELL v. BISHOP, PENITENTIARY SUPERINTENDENT
    No. 13.
    Argued March 4, 1969
    Reargued May 4, 1970
    Decided June 1, 1970

      Anthony G. Amsterdam argued the cause for petitioner on the original argument and on the reargument. With him on the briefs were Jack Greenberg, James M. Nabrit III, Norman C. Amaker, Michael Meltsner, Elizabeth DuBois, and George Howard, Jr.

      Don Langston, Deputy Attorney General of Arkansas, argued the cause for respondent on the original argument and on the reargument. With him on the brief was Joe Purcell, Attorney General.

      Albert W. Harris, Jr., Assistant Attorney General, argued the cause for the State of California as amicus curiae on the original argument and on the reargument. With him on the brief were Thomas C. Lynch, Attorney General, and Robert R. Granucci and George R. Nock, Deputy Attorneys General. Briefs of amici curiae were filed by Elmer Gertz and Willard J. Lassers for the American Civil Liberties Union, Illinois Division, et al.; by Sol Rubin and Samuel B. Waterman for the National Council on Crime and Delinquency; by Leo Pfeffer, Marvin Braiterman, Morris Dershowitz, Will Maslow, Joseph B. Robison, and George Soil for the Synagogue Council of America et al.; by Messrs. Gertz and Lassers and Alex Elson for the American Friends Service Committee et al.; by Warren E. Magee and Judah Best for the American Psychiatric Association; by Berl I. Bern-hard, William T. Coleman, Jr., Samuel Dash, John W. Douglas, Steven Duke, William T. Gossett, Rita Hauser, Burke Marshall, Steven R. Rivkin, Whitney North Seymour, and Cyrus R. Vance, pro sese, for Berl I. Bernhard et al.; by Messrs. Amsterdam, Greenberg, and Meltsner, Melvyn Zarr, and Charles S. Ralston for Robert Page Anderson et al., and by Hilbert P. Zarky and Richard M. Mosk for Clinton Duffy.
   Per Curiam.

In 1962 the petitioner was found guilty of rape by an Arkansas jury without a verdict of life imprisonment, and the trial court imposed a sentence of death. The Arkansas Supreme Court affirmed the judgment of conviction. 236 Ark. 694, 370 S. W. 2d 113. The petitioner then sought a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, claiming, among other things, that his conviction and punishment were unconstitutional in that (1) the jury had determined the two issues of guilt or innocence and of a life or death sentence in a single proceeding, thereby precluding him from presenting evidence pertinent to the question of penalty without subjecting himself to self-incrimination on the issue of guilt; and (2) the jury had been given no standards or directions of any kind to guide it in deciding whether to impose a sentence of life imprisonment or death. The District Court denied the writ, 257 E. Supp. 710, and the Court of Appeals for the Eighth Circuit affirmed, 398 F. 2d 138. We granted certiorari limited to the two questions noted above. 393 U. S. 997.

The petitioner’s trial took place long before this Court’s decision in Witherspoon v. Illinois, 391 U. S. 510. The trial transcript makes evident that several prospective jurors were removed from the panel upon grounds held impermissible in the Witherspoon ease. One prospective juror, for example, was successfully challenged for cause solely on the basis of the following exchange:

“Q. If you were convinced beyond a reasonable doubt at the end of this trial that the defendant was guilty and that his actions had been so shocking that they would merit the death penalty do you have any conscientious scruples about capital punishment that might prevent you from returning such a verdict?
“A. I think I do.” (Emphasis supplied.)

Another venireman was removed from the jury panel on the basis of the following question and answer:

“Q. Do you entertain any conscientious scruples about imposing the death penalty?
“A. Yes, I am afraid I do.”

Still another member of the panel was dismissed after the following colloquy:

“Q. Mr. Adams, do you have any feeling concerning capital punishment that would prevent you or make you have any feelings about returning a death sentence if you felt beyond a reasonable doubt that the defendant was guilty and that his crime was so bad as to merit the death sentence?
“A. No, I don’t believe in capital punishment.” (Emphasis supplied.)

As was made clear in Witherspoon, “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U. S., at 522. We reaffirmed that doctrine in Boulden v. Holman, 394 U. S. 478. As we there observed, it cannot be supposed that once such people take their oaths as jurors they will be unable “to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.” 394 U. S., at 484. “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” Witherspoon v. Illinois, supra, at 516 n. 9.

“The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out . . . Id., at 522 n. 21.

It appears, therefore, that the sentence of death imposed upon the petitioner cannot constitutionally stand under Witherspoon v. Illinois. As in Boulden v. Holman, however, we do not finally decide that question here. The situation in this case closely resembles that presented in Boulden, in that the petitioner’s trial took place before the Witherspoon decision, and the Witherspoon issue was not raised in the District Court, in the Court of Appeals, or in the petition for certiorari filed in this Court. The reasons that persuaded us to remand the Boulden case to the District Court apply with equal force here: “A further hearing directed to the issue might conceivably modify in some fashion the conclusion so strongly suggested by the record now before us. Further, it is not clear whether the petitioner has exhausted his state remedies with respect to this issue. Finally, in the event it turns out, as now appears, that relief from this death sentence must be ordered, a local federal court will be far better equipped than are we to frame an appropriate decree with due regard to available [Arkansas] procedures.” 394 U. S., at 484.

Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court, where the issue that has belatedly been brought to our attention may be fully considered. In the action we take today, we express no view whatever with respect to the two questions originally specified in our grant of certiorari.

r, It is so ordered.

Mr. Justice Marshall took no part in the decision of this case.

Mr. Justice Black,

dissenting.

Since I am still of the view that Witherspoon v. Illinois, 391 U. S. 510 (1968), was erroneously decided, I dissent from the opinion of the Court in this case.

       At the time of the petitioner’s trial Arkansas law provided only two alternative sentences upon conviction for rape:

        “Penalty for rape. — Any person convicted of the crime of rape shall suffer the punishment of death [or life imprisonment].” Ark. Stat. Ann. §41-3403 (1964 Repl. Vol.).

        “Capital cases — Verdict of life imprisonment. — The jury shall have the right in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the State penitentiary at hard labor.” Ark. Stat. Ann. §43-2153 (1964 Repl. Vol.).

       The record shows possible violations of the Witherspoon rule in the removal from the venire of at least four other prospective jurors.

       During oral argument of this case reference was made to the following Arkansas statute:

        “Reduction of verdict. — The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the conviction is proper, and the punishment assessed is greater than, under the circumstances of the ease, ought to be inflicted, so that the punishment be not, in any case, reduced below the limit prescribed by law in such cases.” Ark. Stat. Ann. §43-2310 (1964 Repl. Vol.).
      No effort was made by the petitioner to seek relief in the state courts under this statute. There is nothing in the record or otherwise reported to us to indicate that this remedy is not now available.

       We have today granted certiorari in No. 486, Misc., McGautha v. California, and No. 709, Misc., Crompton v. Ohio, in which these two questions will be considered at an early date in the 1970 Term.


author: Per Curiam. Mr. Justice Douglas,

text:
    UNITED STATES v. ARMOUR & CO. et al.
    No. 103.
    Argued March 5, 1970
    Decided June 1, 1970

      James van R. Springer argued the cause for the United States. On the brief were Solicitor General Griswold, Deputy Assistant Attorney General Comegys, Lawrence G. Wallace, Howard E. Shapiro, and Seymour H. Dussman.

      Herbert A. Bergson argued the cause for appellee General Host Corp. With him on the brief were Howard Adler, Jr., James H. Kelley, Carol Garfiel Freeman, and Edwin E. McAmis.

   Per Curiam.

The judgment is vacated and the case is remanded to the United States District Court for the Northern District of Illinois with instructions to dismiss the case as moot.

Mr. Justice Black took no part in the consideration or decision of this case.

Mr. Justice Marshall took no part in the decision of this case.

Mr. Justice Douglas,

dissenting.

I dissent from dismissal of the case as moot.

In an historic consent decree the giant meatpackers were separated in a complete and continuing way from the general food business, the District Court retaining in the customary way the power to grant additional relief, at the foot of the decree. Some years later motions to vacate the decree were made, and a judgment overruling them was affirmed by this Court. Swift & Co. v. United States, 276 U. S. 311. Later Armour and other meatpacker defendants, claiming that conditions in the food business had changed, sought modifications of the decree to relieve them from the structural bars against engaging in various aspects of the general food and retail meat business. That effort was also unsuccessful. United States v. Swift & Co., 286 U. S. 106. Later, another attempt was made to obtain similar relief and it too failed. United States v. Swift & Co., 189 F. Supp. 885, aff’d, 367 U. S. 909.

Armour is now the second largest meatpacker in the Nation. General Host is engaged in the food products business; it operates some 380 grocery stores, and some lodges, restaurants, and coffee shops. It is, in other words, engaged in lines of business from which Armour, as a party to the decree, would be barred, whether it did so directly or through stock ownership.

Against the resistance of Armour, General Host, which held about 16%% of Armour’s outstanding stock, undertook to acquire at least 51% of it. The United States asked the District Court having jurisdiction over the meatpackers consent decree to make General Host a party under § 5 of the Sherman Act, 26 Stat. 210, as amended, 15 U. S. C. § 5. The refusal of the District Court to do so was, I think, error. After the District Court’s ruling, General Host acquired 57% of Armour’s stock. As a result, a species of the monopoly at which the consent decree was aimed was achieved.

General Host, it appears, has now transferred, pursuant to authority of the Interstate Commerce Commission, its Armour stock to Greyhound Corporation. It is alleged that Greyhound, like General Host, is engaged in food business prohibited to Armour under the decree. The United States contends that Greyhound's control of Armour is as inconsistent with the decree as General Host’s control. Greyhound, the United States states, owns other food interests that Armour could not own by virtue of the decree.

Neither General Host nor Greyhound could, of course, be held in contempt under the decree as it is written, for they were not parties. But they presumably knew of the decree and seemingly fashioned a procedure to circumvent it. The District Court had ample power under § 5 of the Sherman Act, to restrain General Host from frustrating the decree, for § 5 provides:

“Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.”

General Host and Greyhound would have, of course, the opportunity to litigate the question whether their acts do interfere with the decree before any citation for contempt.

Moreover, Rule 25 (c) of the Federal Rules of Civil Procedure provides:

“In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.”

Unless the District Court proceeds against General Host and Greyhound to supplement the decree, there may be no remedy. Without the hearing I urge, they cannot be punished for contempt. Armour, though a party to the decree, was the victim of its violation, not a participant.

Under the decree Armour could not acquire either General Host or Greyhound. Yet the combination of meat-packers with food products arguably is realized whether Armour acquired them, or they, Armour. The misconception of the thrust of the decree by the District Court is evident in its statement that “General Host is not a large meat packer extending its monopolistic grasp toward the rest of the food industry and through the use of its already established distributing facilities, superior financial resources and other means making a dominant position felt, resulting in a restraint of trade by squeezing out present or potential competitors. Rather, General Host, a wholly separate corporate entity, has acquired some shares of Armour stock and evinced an interest in acquiring additional shares.” The evil is in an interference with the decree through the combination of Armour’s meatpacking power with the food lines of General Host — the precise type of evil at which the decree was aimed. And that evil is apparently present in Greyhound’s acquisition.

Mr. Justice Cardozo speaking for the Court in the second Swift case said:

“Whether the defendants would resume [their predatory practices] if they were to deal in groceries again, we do not know. They would certainly have the temptation to resume it. Their low overhead and their gigantic size, even when they are viewed as separate units, would still put them in a position to starve out weaker rivals. Mere size, according to the holding of this court, is not an offense against the Sherman Act unless magnified to the point at which it amounts to a monopoly . . . , but size carries with it an opportunity for abuse that is not to be ignored when the opportunity is proved to have been utilized in the past. The original decree at all events was framed upon that theory. It was framed upon the theory that even after the combination among the packers had been broken up and the monopoly dissolved, the individual units would be so huge that the capacity to engage in other forms of business as adjuncts to the sale of meats should be taken from them altogether. It did not say that the privilege to deal in groceries should be withdrawn for a limited time, or until the combination in respect of meats had been effectually broken up. It said that the privilege should be renounced forever, and this whether the units within the combination were acting collectively or singly. The combination was to be disintegrated, but relief was not to stop with that. To curb the aggressions of the huge units that would remain, there was to be a check upon their power, even though acting independently, to wage a war of extermination against dealers weaker than themselves. . . . Groceries and other enumerated articles they were not to sell at all, either by wholesale or by retail. Even the things that they were free to sell, meats and meat products, they were not to sell by retail.” United States v. Swift & Co., 286 U. S. 106, 116-117.

Mr. Justice Cardozo added that with the addition of groceries to meats, “[t]he opportunity will be theirs to renew the war of extermination that they waged in years gone by.” Id., at 118.

The same sentiment had previously been stated in the Senate by Senator (now Mr. Justice) Black in opposing the move of the meatpacking industry to relax the decree. His fear was opening the doors to control of groceries and other food by the meatpackers:

“If this court decree should be canceled and set aside by governmental consent, a giant food trust would not only be permitted but encouraged to rear its stupendous and ominous form over North, South, East, and West alike. Such governmental action will tacitly invite a monopoly of such size and power that with one stroke of a pen in some large financial center of the Nation this trust could lift the price of bread and meat from Maine to California.”

Later he spoke of a financial prospectus based upon an expected modification-of the decree:

“ With the expected modification of the consent decree, the big meat packers will enter the retail field anew, with nation-wide chains of grocery and other food shops, which will overshadow all the existing enterprises of that type in the United States.’
“ ‘As the nucleus of such chains of meat and grocery stores as they now contemplate the packers may take over most of the huge retail food store chains already existing, such as the big grocery chains, which now operate meat departments in 20,000 to 30,000 such shops in various parts of the country.
“ ‘It will pay every investor to scrutinize closely the increasing profit potentialities of the packing organizations.’ ”

The spectre of meatpacking and food products merging is as ominous today as it was then. It should not matter how the predatory scheme is effectuated, whether one acquires the other or vice versa. On the facts here tendered, a case has been made out for making General Host and Greyhound parties and having a hearing to determine whether they or either of them has interfered with the decree. The question is not whether, as a de novo matter, the combination of either with Armour constitutes a violation of the Act. The issue whether General Host or Greyhound has interfered with the decree is a narrower one. If they and Armour had designed this scheme to avoid the decree, interference would be rather obvious. Why does it matter that General Host or Greyhound, acting without the connivance of Armour, achieves the same result unilaterally? A federal court has inherent power to prevent obstruction of its authority by acts of “force, guile, or otherwise,” whether or not the person charged was or was not a party defendant. See Mississippi Valley Barge Line Co. v. United States, 273 F. Supp. 1, aff’d sub nom. Osbourne v. Mississippi Valley Barge Line Co., 389 U. S. 579. For it is an historic equity principle that even a nonparty is bound “not to interfere with, and not to obstruct, the course of justice,” or treat a court order as “unworthy of notice.” See Seaward v. Paterson, [1897] 1 Ch. 545, 554. Cf., Rule 65 (d), Federal Rules of Civil Procedure.

I would not dismiss the case as moot. Rather, I would remand it to the District Court for a full hearing on the issue of interference.

       72 Cong. Rec. 1239.

       72 Cong. Rec. 9336.


author: PeR Curiam. Mr. Justice Black,

text:
    WYMAN, COMMISSIONER OF SOCIAL SERVICES OF NEW YORK, et al. v. ROTHSTEIN et al.
    No. 896.
    Argued April 27-28, 1970—
    Decided June 1, 1970

      Philip Weinberg argued the cause for appellants. With him on the briefs were Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Amy Juviler, Assistant Attorney General.

      Edward V. Sparer argued the cause for appellees. With him on the brief were Carl Bachlin and Norman Lichtenstein.

      Peter L. Strauss argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Griswold and Assistant Attor

      ney General Ruckelshaus. Morris H. Schneider filed a brief for the Center on Social Welfare Policy and Law et al. as amici curiae urging affirmance.
   PeR Curiam.

Appellees commenced this action in the federal District Court for the Southern District of New York challenging on equal protection and statutory grounds § 131-a of the New York Social Services Law which provides for payments to welfare recipients in Nassau, Suffolk, and certain other New York State counties in lesser amounts than provided for residents of New York City should the Welfare Administrator determine that adequate cause exists for the differential. A three-judge court was convened and it found that appellees’ likelihood of success on their constitutional claim warranted the issuance of a preliminary injunction against what it found to be the payment of welfare in violation of the Equal Protection Clause of the Fourteenth Amendment. The court found it unnecessary to consider appellees’ statutory claims. We noted probable jurisdiction. 397 U. S. 903.

Subsequent to the decision of the District Court this Court rendered its decision in Rosado v. Wyman, 397 U. S. 397, wherein we held that a federal court called upon to pass upon the constitutional validity of a State’s welfare program should, before reaching the constitutional issues, consider first any pendent statutory claims that are presented, notwithstanding the pendency of negotiations between the State and the Department of Health, Education, and Welfare.

In light of the foregoing, the judgment of the District Court is vacated and the case is remanded to that court for an opportunity to pass on the propriety of granting interim relief in accordance with conventional equitable principles on the basis of appellees’ statutory claims, or, if the question is reached, continuing the present injunction in light of this Court’s decision in Dandridge v. Williams, 397 U. S. 471.

It is so ordered.

Mr. Justice Marshall took no part in the decision of this case.

Mr. Justice Black,

with whom The Chief Justice joins,

dissenting.

When this action was commenced by appellees, the Secretary of Health, Education, and Welfare was in the process of determining if the New York welfare provisions under attack in this case are consistent with the federal standard requiring uniform statewide application of state welfare plans. See Social Security Act § 402, as amended, 81 Stat. 877 et seq., 42 U. S. C. § 602 (1964 ed., Supp. IY); 45 CFR § 233.20. Although the federal agency has not yet made a final decision, it appears from the brief submitted by the United States as amicus curiae that HEW has made a preliminary determination that the New York provisions do not conform to the Social Security Act’s requirements.. Accordingly, the statutory claim which this Court today remands to the District Court for its consideration involves a live controversy between New York and the Federal Government, and, as I said in my dissenting opinion in Rosado v. Wyman, 397 U. S. 397, 430 (1970), it is my belief that such controversies should be resolved in proceedings between the two governments involved, as provided in the Social Security Act. See, e. g., 42 U. S. C. §§ 602, 1316 (1964 ed., Supp. IV). For this reason, I would vacate the judgment of the District Court and remand with directions that the complaint be dismissed.


author: Per Curiam. Mr. Justice Harlan,

text:
    BLOSS et al. v. DYKEMA
    No. 1347.
    Decided June 1, 1970
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment of the Michigan Court of Appeals is reversed. Redrup v. New York, 386 U. S. 767.

The Chief Justice and Mr. Justice White are of the opinion that certiorari should be denied.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Harlan,

dissenting.

I would affirm the judgment of the Michigan Court of Appeals upon principles heretofore often expressed by me. See my opinions in Roth v. United States, 354 U. S. 476, 496 (1957); Jacobellis v. Ohio, 378 U. S. 184, 203 (1964); Memoirs v. Massachusetts, 383 U. S. 413, 455 (1966). From the standpoint of what I regard as the permissible exercise of state power in this field, the materials in this case fall far short of the “borderline” movie involved in Cain v. Kentucky (reversed summarily), 397 U. S. 319 (1970), see my dissent in that case, and I am at a loss to understand how these materials can be deemed to qualify for Redrup treatment when only a short time ago the Court declined to accord that treatment to the materials involved in Spicer v. New York, cert. denied, 397 U. S. 1042.


author: Per Curiam.

text:
    FOLLETTE, WARDEN v. COMACHO
    No. 1394.
    Decided June 1, 1970
   Per Curiam.

The motion of the respondent for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of McMann v. Richardson, 397 U. S. 759.

Mr. Justice Marshall took no part in the consideration or decision of this case.


text:
    HIGGINS v. UNITED STATES
    No. 1183,
    Misc.
    Decided June 1, 1970
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of Gutknecht v. United States, 396 U. S. 295.

Mr. Justice Marshall took no part in the consideration or decision of this case.


text:
    LEITCHFIELD MANUFACTURING CO., INC., et al. v. UNITED STATES et al.
    No. 1426.
    Decided June 1, 1970
   Per Curiam.

The judgment of the District Court is vacated and the case is remanded to that court for redetermination upon the basis of the record of the Interstate Commerce Commission proceedings.

Mr. Justice Black would note probable jurisdiction and set the case for argument.

Mr. Justice Douglas and Mr. Justice Harlan would affirm.

Mr. Justice Marshall took no part in the consideration or disposition of this case.