Walker v. City of Birmingham Motion for leave to File Brief and Brief Amicus Curiae

    No. 249

IN THE

Supreme Court of tiro luttrft ^totro
OCTOBER TERM, 1966

W yatt  T ee W alker , M artin  L u th er  K in g , J r., R alph  
A bern ath y , A . D . K ing , J. W . H ayes, T. L . F ish er , 
F . L . S h u ttlesw orth  and J. T. P orter, Petitioners.

v.
C ity  of B ir m in g h a m , a M u n icipal  C orporation 

of th e  S tate of A labama

MOTION FOR LEAVE TO FILE A BRIEF 
AS AMICUS CURIAE 

AND
BRIEF FOR THE AMERICAN FEDERATION OF 

LABOR AND CONGRESS OF INDUSTRIAL 
ORGANIZATIONS AS AMICUS CURIAE

J. Albert W oll 
General Counsel, AFL-CIO

Robert C. Mayer 
Laurence Gold

736 Bowen Building 
815 Fifteenth Street, N. W. 
Washington, D. C. 20005

Thomas E. H arris 
Associate General Counsel, AFL-CIO 

815 Sixteenth Street, N. W. 
Washington, D. C. 20006

17 17



INDEX

Page
Motion for Leave to P i le .............................................................  iii

Brief ..............................................................................................  1

Interest of the APL-CIO .............................................................  1

Reasons for Granting the Petition ...............     3

1. The decision may encourage abuse of the labor injunction 3

2. The decision permits the use of unconstitutional licensing
ordinances to bar unions .........................    12

3. The decision exalts a state procedural rule over basic sub­
stantive federal rights .......................................   15

Conclusion ......................................................................................  20

CITATIONS

Cases :

Alabama Cartage Co., Inc. v. Teamsters, 34 So.2d 576, 21 
LRRM 2682 ................................................................................  10

Amalgamated Clothing Workers v. Bichman Bros., 348 TJ.S.
511 ..............................................................................................  7

Chavez v. Sargent, 52 Col.2d 162, 339 P.2d 8 0 1 ................... 13
Construction & General Laborers’ Union, Local 438 v. Curry,

371 TJ.S. 542 ........................................... .........................  4, 6, 7,18
Denton v. City of Carrollton, 235 F.2d 4 8 1 ...............................  15

Dombrowshi v. Pfister, 380 U.S. 479 ..........................................  15

Douglas v. City of Jeanette, 319 U.S. 1 5 7 ...................................  15

Fields v. City of Fairfield, 375 U.S. 248 .................................  19
Green, In re, 369 U.S. 689 ...................................................  3,16,19
Greenwood, City of v. Peacock, 384 U.S. 808 ...........................  6,14
Hamilton v. Alabama, 376 U.S. 650 ...........................................  19

i



Page
Hattiesburg Building & Trades Council v. Broome, 377 U.S.

126 ........................................................................................... 6,9
Henry v. Mississippi, 379 U.S. 443 ............................................. 17

Hotel Employees Union, Local No. 255 v. Sax Enterprises,
Inc., 358 U.S. 270 ....................................................................... 9

IBEW  Local Union 429 v. Farnsworth <& Chambers Co., 353 
U.S. 969 ................................................................................   8

Johnson v. Virginia, 373 U.S. 61 ...............................................  19
Kentucky State AFL-CIO v. Puckett, 391 S.W.2d 360, 59 

LRRM 2337 ................................................................................  13
Liner v. Jafco, Inc., 375 U.S. 3 0 1 .............................................  8,18

Lovell v. City of Griffin, 303 U.S. 444 .........................................  13

Porterfield, In re, 28 C'al.2d 91, 168 P.2d 706 ............................ 13
Radio & Television Broadcast Technicians, Local 1264 v. 

Broadcast Service of Mobile, 380 U.S. 255 ...........................  6,10

Shuttlesworth v. City of Mobile, 376 U.S. 339 .......................... 18
Starnes v. City of Milledgeville, 56 P. Supp. 956 ................. 15
Staub v. City of Baxley, 355 U.S. 3 1 3 .................... 9,12,14,16,18
Steelworkers v. Bagwell, 239 F. Supp. 626 .............................. 15
Steelworkers v. Fuqua, 253 F.2d 594 .........................................  15
Teamsters Union, Local No. 327 v. Kerrigan Iron Works, 353

U.S. 968 ......................................................................................  1>8
United States v. United Mine Workers, 330 U.S. 258 ............ 18,19
Williams v. Georgia, 349 U.S. 375 ............................................... 11
Toungdahl v. Rainfair, Inc., 355 U.S. 1 3 1 .................................  5
Miscellaneous :
BUSINESS WEEK for April 25, 1954 .....................................  2
THE USE OP STATE COURT INJUCTIONS IN LABOR-MAN­

AGEMENT DISPUTES (Senate Document No. 7, 81st Cong., 
2d Sess.) ......................................................................  4 ,5 ,7 ,9,10

u



IN THE

Supreme (£mtrt nf %  Imteii BUUb
OCTOBER TERM, 1966

No. 249

W yatt  T ee W alker , M artin  L u th er  K in g , J r., R alph  
A bern ath y , A . D . K in g , J. W , H ayes, T . L . F ish er , 
F . L. S h u ttlesw orth  and  J. T . P orter, Petitioners.

v.
C ity  of B ir m in g h am , a M u n icipa l  C orporation 

of th e  S tate of A labama

MOTION FOR LEAVE TO FILE A BRIEF 
AS AMICUS CURIAE

The American Federation of Labor and Congress of In­
dustrial Organizations (AFL-CIO) hereby respectfully 
moves for leave to file a brief as amicus curiae in support 
of petitioners ’ petition for a rehearing. The consent of the 
attorneys for the petitioners has been obtained. The con­
sent of the attorneys for the respondent was requested but 
refused.

The AFL-CIO has never before asked leave of this 
Court to file an amicus brief urging grant of a petition for 
rehearing. We do so now because we are concerned that 
the decision of the Court in this ease may furnish local 
officials and judges with a means of destroying rights of 
free speech and assembly generally, and the right of work­
ers to organize in particular. Further, it has been the ex­
perience of the AFL-CIO over many years that in some 
areas local officials, including, unfortunately, judges, will 
seize upon any legal device available to frustrate union 
organization.

iii



Counsel for the petitioners have dealt and will deal with 
the general impact of the decision on free speech and as­
sembly. The memorandum for the United States as Amicus 
Curiae likewise covered, admirably we think, that aspect of 
the case. While the AFL-CIO is, naturally, deeply con­
cerned with those issues, we shall, to avoid duplication, 
treat principally the area of our particular concern and 
experience.

Hence we ask leave to place before the Court a state­
ment of our reasons for believing, on the basis of the ex­
perience of AFL-CIO unions, that its decision in this case 
may he widely used to destroy the right of workers to or­
ganize; that it may facilitate the undercutting by hostile 
local officials both of basic constitutional rights and of na­
tional labor policies embodied in federal legislation; and 
that the decision should, therefore, be reconsidered. A  brief 
containing such a presentation is tendered with this motion.

Respectfully submitted,

J. A lbert Worn 
General Counsel, AFL-CIO
Robert C. Mayer 
Laurence Gold 

736 Bowen Building'
■ 815 Fifteenth Street, N. W. 

Washington, D. C. 20005
Thomas E. H arris 
Associate General Counsel, AFL-CIO 

815 Sixteenth Street, N. W. 
Washington, D. C. 20006

July 1967

IV



Bnpmn? (Hmtrt nt tlw ImtBib States
OCTOBER TERM, 1966

IN THE

No. 249

W yatt  T ee W alker , M artin  L u th er  K in g , J r ., R alph  
A bernath y , A . D. K ing , J . W . H ayes, T. L . F isher , 
F. L. S h u ttlesw orth  and  J . T. P orter, Petitioners.

v.
C it y  op B ir m in g h am , a M u n icipa l  Corporation 

op th e  S tate op A labama

BRIEF FOR THE AMERICAN FEDERATION OF 
LABOR AND CONGRESS OF INDUSTRIAL 

ORGANIZATIONS AS AMICUS CURIAE

INTEREST OF THE AFL-CIO
This brief amicus curiae is tendered for filing by the 

American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO), contingent upon the Court’s 
granting the Motion for Leave to File a Brief Amicus 
Curiae.

The AFL-CIO is primarily an association of one hun­
dred twenty-nine national and international unions. These 
unions are active in organizing and representing employ­
ees in collective bargaining throughout the United States, 
including the southeastern part of the United States. The 
AFL-CIO itself is likewise active in organizing throughout 
the United States, and for that purpose maintains a De­
partment of Organization comprised of a director, two as­
sistant directors, 20 regional directors, 10 assistant regional 
directors, and a staff of 124 field representatives. The 
AFL-CIO and its affiliated unions thus have had extensive 
experience with the obstacles, legal and otherwise, to or­
ganizing in the southeastern part of the United States.



(2)

Those obstacles are substantial. A  compilation appear­
ing in Business Week for April 25, 1964, p. 49, shows that 
whereas the percentage of eligible workers in unions is 
31% for the country as a whole, the figure for North Caro­
lina is 7.4%, for South Carolina 7.8%, for Virginia 11.6%, 
for Florida 12.7%, for Georgia 13.4%, and for Mississippi 
13.7%. Only Alabama among the southeastern states shows 
a figure approaching that for the Nation as a whole, i.e.: 
30.2%, and that is because the large steel companies which 
have substantial employment in Alabama and whose em­
ployees are organized in other parts of the country have 
not relentlessly fought unionization as have most employ­
ers in the southeast.

In opposing unions employers in the southeast receive 
in most instances the full and enthusiastic cooperation of 
the local authorities, including the city councils, the courts, 
and the police, local or state. Industrial plants are often 
enticed to locate in particular communities by being given 
free plants or plant sites which are financed by tax exempt 
local bond issues, and the local officials and community 
leaders undertake, as part of the enticement and to protect 
their investment, to bar unions.

As part of this pattern two devices, among others, are 
extensively used to deny the right to form unions purport­
edly conferred by the National Labor Relations Act and, 
for that matter, the rights of free speech and assembly 
guaranteed by the Fourteenth and First Amendments.

One device is the issuance of a temporary restraining 
order or preliminary injunction in virtually every labor- 
dispute, often in complete disregard both of substantive 
rights under the Fourteenth Amendment and the National 
Labor Relations Act and of the exclusive primary juris­
diction of the National Labor Relations Board. The other 
device is the enactment of blatantly unconstitutional local 
licensing ordinances.



(3)

We believe, and we seek to show, that the decision of 
this Conrt in this case may invite the continued use of 
these illegal injunctions and ordinances by further weak­
ening the already inadequate remedies against them. We 
further submit, with all deference, that the decision of the 
Court will not promote “ respect for judicial process”  or 
“ the civilizing hand of law”  but will, rather, promote dis­
respect for the courts and the law by encouraging the con­
tinued abuse of judicial process to deny basic rights.

REASONS FOR GRANTING THE PETITION

1. The decision may encourage abuse of the labor injunc­
tion by state courts. While the opinion of the Court in the 
present case is not entirely clear, it may be read as requir­
ing compliance with an injunction, even if the issuing court 
had no jurisdiction because of federal preemption. See 
especially the discussion in footnote 6 of In re Green, 369 
U.8. 689. The decision clearly requires compliance with 
an injunction even though it is invalid under the Four­
teenth Amendment as impermissibly restraining free speech 
and assembly; and as the dissenting justices point out it is 
difficult to believe that the Court meant to accord greater 
sanctity to the exclusive primary jurisdiction of the Na­
tional Labor Relations Board than to the substantive rights 
protected by the Fourteenth Amendment. Hence we are 
concerned that the decision may require unconditional 
obedience to any and every state court injunction. Any 
such doctrines would be utterly destructive of any right 
to form unions in the southeastern part of the United 
States.

The experience of the AFL-CIO and its affiliated unions 
and available published materials show that the use of 
labor injunctions has steadily increased in the state courts 
in the southeastern States, even before the present decision.



(4)

Indeed the use of injunctions in labor disputes seems to 
have spread as industrialization has spread.

A  monumental study, “ THE USE OF STATE COURT 
INJUNCTIONS IN LABOR - MANAGEMENT DIS­
PU TES”  (Senate Document No. 7, 81st Cong., 2d Sess.), 
was published by the Senate Committee on Labor and Pub­
lic Welfare in 1951.1 This study found that the use of in­
junctions had approximately doubled in the southeastern 
States2 during the post-World War II period, as compared 
with 1932-45. (Report, p. 96.) Yet at that time injunctions 
were still rare in the Carolinas (Report, p. 96), whereas 
they are, according to the advices received by the AFL-CIO, 
now standard operating procedure there. And the picture 
does not seem to be appreciably different in other States in 
the area: the petition for certiorari in Construction $  Gen­
eral Laborers’ Union, Local 438 v. Curry, 371 U.S. 542, 
filed in 1962, listed (pp. 14-20) 46 cases in which prelim­
inary injunctions had issued since 1952 in Fulton County 
(i.e., Atlanta), Georgia, alone.

In some areas, including, as we are advised, North and 
South Carolina, it is the usual practice for the judges to 
issue ex parte temporary restraining orders,3 while in

1 The Committee commissioned four universities to study the use 
of state court injunctions in labor disputes in four areas of the 
country. One of these areas was the southeastern States, the study 
there being made by Duke University. In all four areas the surveys 
were conducted under the supervision of distinguished scholars, viz., 
Edwin E. Witte, University of Wisconsin; Benjamin Aaron, 
U.C.L.A., Milton R. Konvitz, Cornell; and Charles H. Livengood, 
Jr., Duke. No comparable study has been made since.

2 For purposes of the study the southeast was defined (p. 92) as 
including the 10 States of Alabama, Arkansas, Florida, Georgia, 
Louisiana, Mississippi, North Carolina, South Carolina, Tennessee 
and Virginia. We use the same definition.

3 The 1951 Senate Committee study states (p. 6) :
“ In the Southeastern States ex parte restraining orders were

issued in 81 of the 96 cases * * * for which information on this
point was obtainable.



(5)

others some notice is given, and in still others the usual 
practice is to issue a temporary injunction after a prelim­
inary hearing. In any event, anything more than a pre­
liminary hearing is extremely rare, because the dispute is 
usually settled long before any hearing on the merits can 
be obtained. Of the 46 injunction cases listed in the peti­
tion for certiorari in Curry not a single case ever went to 
hearing on the merits. As the petition explained, pp. 17-18, 
in Fulton County, Georgia, a case does not come up for 
trial on the merits in less than one year, and by that time 
the controversy is invariably entirely moot. The 1951 Sen­
ate Labor Committee study similarly found that few labor 
injunctions ever are carried beyond the temporary injunc­
tion staged

The restraining order or temporary injunction is often 
based on generalized allegations of violence or threats of 
violence, and that was the practice 25 years ago, too. (See 
Senate Report, p. 97.) The injunction is usually in broad 
terms, with no attention being paid to this Court’s holding 
in Youngdahl v. Rainfair, Inc., 355 TJ.S. 131, that only vio­
lence, and not peaceful picketing, may constitutionally be 
enjoined. Thus in 41 of the 46 cases listed in the petition in 4

4 The study states (p. 7) :
“ The lack of full hearings in labor injunction eases, in which 

witnesses testify in open court and are subject to cross examina­
tion, is not due to any ‘ abuse’ of the injunction procedure by the 
courts. It arises from the nature of labor-management disputes. 
These usually last but a short time and all pending legal pro­
ceedings are dismissed when a strike settlement is reached. * * * 
Injunctions in labor cases are almost always issued either ex 
parte or after only oral arguments in court, with the testimony 
confined to the complaint and answer and the supporting affidavits 
filed by the two sides. The pleadings and affidavits presented by 
the parties are often contradictory, yet the courts generally dis­
pose of the litigation of this sort of evidence, without examina­
tion of the witnesses in person, unless the case reaches the per­
manent injunction stage (which, as noted, is rare).”



(6)

Cxirry, the temporary injunction restrained all picketing 
or striking. And the courts often pay little heed to any 
claim that the dispute is within the exclusive primary jur­
isdiction of the National Labor Eolations Board. See, e.g., 
Construction & General Laborers’ Union, Local 438 v. 
Curry, 371 U.S. 542; Hattiesburg Building & Trades Coun­
cil v. Broom, 377 U.S. 126 (per curiam); Radio &Television 
Broadcast Technicians Local Union 1264 v. Broadcast Serv­
ice of Mobile 380 U.S. 255 (per curiam).

The injunction usually narrowly limits the number of 
pickets, and it customarily prohibits picketing on the em­
ployer’s premises, such as the road into the plant, the park­
ing lots, and so forth. Thus the pickets are moved out to 
the public highway, where the local police or sheriff’s 
deputies harass them for blocking traffic.

Once the strike or organizing campaign is broken, or, 
much more rarely, the dispute is settled between the union 
and the employer, the legal proceedings languish.

That is the way the labor injunction works in the south­
eastern States at the present time.

The remedies now available against even flagrantly il­
legal state court labor injunctions are wholly inadequate.

Removal to federal court would be an adequate remedy 
but these cases do not fall within the general removal stat­
ute (28 U.S.C. §1441) or, under the decisions, of this Court, 
within the special removal statute applicable to civil rights 
cases, i.e., 28 U.S.C. §1443. See, e.g., City of Greenwood, 
Mississippi, 384 U.S. 808. While this Court has not ruled 
on whether state court suits for breach of contract under 
§301 of the Taft-Hartley Act are removable to federal 
court, a decision in favor of removal would not alleviate the 
situation with which we are here concerned; for state court 
injunctions are used in the southeast to bar unionization, 
not to enforce collective bargaining agreements.



(7)

A  federal court injunction against state court proceed­
ings where the matter is within exclusive primary NLRB 
jurisdiction would likewise be an adequate remedy, but is 
likewise unavailable under the Court’s decision in Amal­
gamated Clothing Workers v. Richman Bros., 348 U.S. 511.

The course seemingly required by the Court’s decision 
in the present case, of complying with the temporary re­
straining order or preliminary injunction while appealing, 
is doubly inadequate.

In the first place, as already shown, the strike or organ­
izing campaign will normally be defeated long before ap­
pellate review is obtained. This Court so recognized in 
Construction & General Laborers’ Union, Local 438 v. 
Gurry, 371 U.S. 542, where it held that a preliminary in­
junction directed by the Georgia Supreme Court in a labor 
dispute properly within exclusive NLRB jurisdiction had 
sufficient finality to be reviewable by this Court. This Court 
declared (371 U.S. at 550):

“ The truth is that authorizing the issuance of a tem­
porary injunction, as is frequently true of temporary 
injunctions in labor disputes, may effectively dispose 
of petitioner’s rights and render entirely illusory his 
right to review here as well as his right to a hearing 
before the Labor Board.”

In Tennessee, according to the 1951 Senate Committee 
study, p. 94:

“ An appeal cannot be made from a temporary re­
straining order and a defendant cannot move to dis­
solve except on hearing. Motions to dissolve are placed 
on the regular court docket and wait their turn to be 
heard. ’ ’

The remedy of appeal through the state courts is thus 
even more clearly futile in Tennessee than elsewhere. 
In Teamsters Union, Local No. 327 v. Kerrigan Iron Works,



(8)

353 U.S. 968, a temporary injunction against picketing was 
issued, and a motion to dismiss because of exclusive NLRB 
jurisdiction was denied, by the Chancellor, on January 12, 
1953. Tbe case was beard on the merits by the same Chan­
cellor on June 28, 1955, and the injunction was made per­
manent on that date. The Tennessee Court of Appeals af­
firmed on June 29, 1956 (41 Tenn. 467, 296 S.W. 2d 379, 38 
LRRM 2499), and this Court granted certiorari and re­
versed per curiam on May 27, 1957.

Plainly, in cases like these, appellate review, whether in 
the state courts or by this Court, is only of precedential 
value, and is meaningless as respects affecting the outcome 
of the particular controversy. Indeed in Liner v. Jafco, 
Inc., 375 U.S. 301, the Tennessee Court of Appeals affirmed 
an injunction against peaceful picketing in part on the 
ground that the case was moot because the construction 
project had been completed. This Court reversed, holding 
that the dispute was within NLRB jurisdiction and that 
the Court was not bound by the state court’s finding of 
mootness. The Court said (375 U.S. at 307):

“ It would encourage such interference with the federal 
agency’s exclusive jurisdiction if a state court’s hold­
ing of mootness based on the chance event of comple­
tion of construction barred this Court’s review of the 
state court’s adverse decision on the claim of federal 
preemption. ’ ’

See also IBEW Local Union 429 v. Farnsworth & Cham­
bers Co., 353 U.S. 969, reversing per curiam the Supreme 
Court of Tennessee.

In the second place, the appellate remedy is illusory be­
cause there is no ground for believing that state appellate 
courts in the southeast have any greater concern than do 
state trial courts for constitutional rights of free speech 
and assembly, or for the exclusive jurisdiction of the



NLRB. To be blunt, it is a case of out of the frying pan 
into the fire.

In Curry the Superior Court of Fulton County, Georgia, 
which, as the petition for certiorari recited, had issued 
preliminary injunctions totally prohibiting picketing or 
striking in 41 cases in the preceding 10 years, for once 
refused to issue an injunction in deference to NLRB juris­
diction; but the Georgia Supreme Court reversed and or­
dered an injunction. The Georgia appellate courts like­
wise flagrantly refused to protect the basic constitutional 
rights of workers and unions in Staub v. City of Baxley, 
355 U.S. 313.

The situation is not different in other southeastern States. 
In Florida, the state trial courts repeatedly refused to en­
join peaceful organizational picketing of resort hotels, and 
the Florida Supreme Court repeatedly ordered that the 
injunctions issue. Finally this Court reversed per curiam, 
holding that the state courts were without jurisdiction. 
Hotel Employees Union, Local No. 255 v. Sax Enterprises, 
Inc., 358 U.S. 270. See also Hattiesburg Building & Trades 
Council v. Broome, 377 U.S. 126, reversing per curiam the 
Supreme Court of Mississippi.

In Alabama the remedy of appeal through the state 
courts seems to be worse than useless in labor injunction 
cases, at least from the union standpoint. The 1951 Senate 
Committee study contains the following passage (p. 93):

“ A  complainant has the right in Alabama, however, to 
re-present its bill of complaint to a higher court if the 
lower court refuses to grant relief without a hearing. 
Several cases were found where the court of appeals 
or supreme court (Alabama has an intermediate and 
supreme court) granted ex parte orders, previously 
denied and set for hearing in the circuit court. The 
union attorneys claim the circuit is then reluctant to

(9)



(10)

dissolve the higher court’s ex parte order when it 
comes to a hearing for a temporary injunction.12

12 The inference is that the circuit court judge may feel a modi­
fication or dissolution of the higher court’s order will not stand if 
appealed. A  reported ease serves as an illustration.

'The circuit court denied an ex parte request in which the em­
ployer sought to restrain a strike and all picketing on charges 
of a union breach of contract. Within a day the Alabama Court 
of Appeals granted the order ex parte. Upon hearing, the circuit 
court modified the order to allow truthful and peaceful picketing, 
although the strike was still enjoined. Upon appeal, the picketing 
was again enjoined (Alabama Cartage Company, Inc. v. Team­
sters, 34 So.2d 576, 21 L.R.R.M. 2682; Jefferson County Circuit 
Court, June 20, 1947.)”

Here again, the situation does not seem to have changed 
since 1951. Consider, for example, Radio & Television 
Broadcast Technicians Local Union 1284 v. Broadcast 
Service of Mobile, 380 U.S. 255. There the Circuit Court 
of Mobile County issued a temporary injunction against 
peaceful picketing on September 13, 1962; but on May 23, 
1963, after hearing on the merits, it dissolved the injunc­
tion in deference to NLRB jurisdiction. But on December 
12, 1963, the Alabama Supreme Court unanimously re­
versed, and directed that the temporary restraining order 
be reinstated. Its opinion declares (55 LRRM 2005): “ It 
should be made clear that we have made no attempt to 
decide the merits of this case * * On March 15, 1965, 
this Court reversed per curiam.

When a union which is conducting an organizing cam­
paign or strike is faced with an injunction against picket­
ing or striking, and its counsel believes that the court had 
no jurisdiction to issue the injunction, or that the injunc­
tion violates the Fourteenth Amendment, what is the union 
to do? The opinion of the Court in this case seems to say 
that the union should obey the injunction, while seeking to 
have it modified or set aside by the state trial or appellate



(11)

courts. But all experience shows that this course is illusory. 
If an organizing campaign or strike is stopped, it cannot 
be turned on again like a water spigot. The organizing 
campaign will have lost its momentum and the strike have 
been broken. Months and years will pass while the illegal 
injunction continues in effect until the union disappears. 
To say in this context that a union must always obey an 
injunction is to permit state courts to stultify the National 
Labor Relations Act and even the Constitution of the Unit­
ed States, and the courts of several States have shown 
that that is just what they will do.

Unless the right to organize is to be completely destroyed 
over wide areas of the country, a union which is conducting 
an organizing campaign or strike must have the right to 
ignore, though at its peril, an injunction against picketing 
or striking- which it believes to be illegal. If the injunction 
is ultimately adjudged to be lawful, the union can be pun­
ished for contempt, but if the injunction is ultimately ad­
judged to be unlawful there is no reason why the union 
should be subject to punishment for having refused to 
surrender the most basic rights of workers in deference 
to an illegal decree.

This doctrine which we urge has long prevailed in many 
States, and it has not produced any breakdown of law and 
order, for the evident reason that a union will not usually 
risk punishment for contempt by disobeying an injunction 
unless it is sure of its legal ground. According to the 
Court’s opinion, the legality of an injunction may be chal­
lenged on contempt in Wisconsin but not in Alabama. Does 
the Court really think that these divergent rules insure 
“ respect for judicial process”  and “ the civilizing hand of 
law”  in Alabama, and not in Wisconsin!

Indeed the right to question the legality of an injunction 
in contempt proceedings is itself a feeble and inadequate



(12)

remedy. Unions or employees ignoring an injunction will 
do so at peril of fine and perhaps imprisonment if the in­
junction is ultimately held lawful. The job of the em­
ployees will also he at hazard. Moreover in the southeast, 
and particularly its rural areas, those ignoring an in­
junction, or striking or picketing at all for that matter, do 
so at peril of rough treatment from the police.

The reasons we want the right to ignore an illegal in­
junction— so perilous a proceeding can hardly be called a 
remedy—are that that is the only course which may keep 
a strike or organizing campaign alive, and that the contrary 
rule will encourage even more flagrant abuses of the labor 
injunction by state courts.

2. The decision permits the use of unconstitutional li­
censing ordinances to bar unions. A  second legal, or rather 
illegal, device which is widely used in southeastern States 
to bar unions from particular localities is a municipal 
licensing ordinance. These ordinances make it a crime for a 
union or union organizer to solicit anyone to join a union 
without first securing a license. Usually an exorbitant license 
fee is fixed, and sometimes a daily fee or a fee for each per­
son joining. It has long been settled, or as settled as the 
decisions of this Court can make it, that these ordinances 
are unconstitutional, yet they continue to be used to break 
up organizing campaigns; and we are fearful that the deci­
sion of the Court in the present case will encourage the use 
of these ordinances by compelling compliance with injunc­
tions against organizing without a license, even though the 
licensing ordinance is unconstitutional on its face.

Normally no effort is made to give even a pretense of con­
stitutionality to these ordinances. Thus the ordinance, 
adopted in 1954, which the Court held invalid in Staub v. 
City of Baxley, 355 U.S. 313, not only gave the mayor and 
city council complete discretion to grant or -withhold a



(13)

license, but required payment of a license fee of $2,000 per 
year, plus $500 for each member obtained. No lawyer could 
have supposed, in view of such prior decisions as Lovell v. 
City of Griffin, 303 U.S. 444, that the Baxley ordinance 
would survive, but it served its purpose, which was to stop 
a particular union organizing drive.

Here, too, as in the use of labor injunctions, the AFL-CIO 
and its affiliates encounter a regular pattern. In many in­
stances as soon as an organizing campaign gets under way 
an ordinance like the Baxley ordinance is passed, 5 and the 
union organizers are arrested, and the organizing campaign 
is effectively arrested too. The organizers are usually re­
leased on bond after a few days, but are afraid to resume 
organizing in view of the likelihood of recurrent arrests, 
and leave town. Prosecutions under these ordinances are 
usually dropped as soon as the organizing drive is aban­
doned, and few cases involving them find their way into the 
appellate courts.6

That being so, it is difficult to say how prevalent these 
ordinances are. For example, files of the AFL-CIO show that

8 Several years ago AFL-CIO organizers were arrested in Flor­
ence, South Carolina, purportedly under a local licensing ordi­
nance. When the attorney retained by the AFL-CIO sought to ob­
tain the text of the ordinance he met with evasion, but was 
eventually told that “ the ordinance hasn’t been passed yet.”

6 The L.R.R.M. digests (key no. 73-50) list about 15 appellate 
decisions from 1943 to date. All of the reported decisions are from 
the southeastern States or Kentucky, except for In re Porterfield, 
28 Cal.2d 91, 168 P.2d 706 (Calif. Sup. Ct., 1946), holding a li­
censing ordinance invalid. Several anti-union municipalities in 
rural California, and more recently in rural Kentucky, adopted 
“ right-to-work”  ordinances, but these ordinances were held in­
valid. Chavez v. Sargent, 52 Cal.2d 162, 339 P.2d 801 (Calif. Sup. 
Ct., 1959) ; Kentucky State AFL-CIO v. Puckett, 391 S.W.2d 
360, 59 L.R.R.M. 2337 (Ky. Ct. App., 1965). Presumably these 
ordinances were meant to lay a basis for enjoining strikes and 
picketing as seeking an illegal union shop, i.e., the technique dis­
approved by this Court in Curry.



(14)

five separate cities in Arkansas enacted licensing ordinances 
and that several convictions resulted, but in all instances the 
cases were dropped when the unions appealed, so that no re­
ported decision resulted. City ordinances are not compiled 
anywhere, or even printed except in the case of the larger 
cities. Often the only record of municipal ordinances is a 
typed file kept at the city hall, and even the attorneys prac­
ticing in a State do not know which towns have union 
licensing ordinances, or whether a particular town con­
siders that its ordinance is still in effect or not. Sometimes 
licensing ordinances are repealed when union organizing 
is no longer imminent, while at other times they languish in 
limbo.

However, it is the belief of the AFL-CIO that a substan­
tial number of these ordinances are still in existence, prin­
cipally in the southeastern States. The brief for the appel­
lant in Staub v. City of Baxley listed, beginning on p, 31, 
30 of these ordinances. Perhaps a half dozen ordinances a 
year come to the attention of the AFL-CIO legal staff in 
Washington, but, as stated, we have no way of knowing 
which ordinances are considered to be still in effect.

In any event, and no matter how flagrantly unconstitu­
tional the ordinance, there is even now no clearly available 
adequate remedy. And, as stated, we are fearful that the 
decision of this Court in the present case will make these 
ordinances even more effective by encouraging the device 
of incorporating them in injunctions, just as the parade 
ordinance was transformed into an injunction in the present 
case.

If prosecutions for organizing without a license could be 
removed to federal court, that would be an effective remedy, 
but they cannot. See City of Greenwood v. Peacock, 384 
IJ.S. 808.



(15)

A  federal district court injunction against enforcement 
of a licensing ordinance would likewise be an effective rem­
edy, and it may be that such a suit will lie under the recent 
decision of this Court in Dombrowski v. Pfister, 380 U.S. 
479. However, such earlier decisions as Douglas v. City of 
Jeanette, 319 U.S. 157, seemed to preclude an injunction, 
and they have usually been denied in the lower federal 
courts.7

Hence the only remedy which has clearly been held avail­
able to contest the constitutionality of these licensing ordi­
nances is an appeal from a criminal conviction, as in Staub. 
As stated, even this remedy is quite ineffective because in 
the meantime arrests will have broken up the organizing 
drive.

However, we are concerned that even this inadequate 
remedy will be undercut by the decision of this Court in this 
case. The opinion of the Court acknowledges that the Bir­
mingham parade ordinance was of doubtful constitutional­
ity, but nevertheless holds that the petitioners were bound 
to obey the injunction against parading without a license.

Any such doctrine will be utterly destructive in numerous 
towns and cities, of any right to organize, or, for that mat­
ter, to carry on any sort of agitation not acceptable to the 
municipal authorities.

3. The decision exalts a state procedural, rule over basic 
substantive federal rights. We submit that in several re­
spects the decision in the present case is wholly inconsistent 
with long established and sound Supreme Court doctrine.

7 Injunctions were denied in Steelworkers v. Fuqua, 253 F. 2d 
594 (6th Cir., 1958); Steelworkers v. Bagwell, 239 F. Supp. 626, 
(W.D.N.C., 1965); and Starnes v. City of Milledgeville, 56 F. 
Supp. 956 (M.D. Ga., 1944). An injunction was granted in Den­
ton v. City of Carrollton, 235 F. 2d 481 (5th Cir., 1956).



(16)

In the first place no state procedure can be regarded as 
valid, so that resort to it is required, if the procedure itself 
demands a substantial relinquishment of constitutional or 
other important federal rights.

The opinion of the Court holds that the defendants were 
required to comply with the parade ordinance by applying 
for a permit, notwithstanding the delay involved and even 
assuming that the ordinance was unconstitutional, and that 
they were even more compelled to comply with the tem­
porary injunction, unless and until it was set aside on 
appeal, even if both injunction and underlying ordinance 
were unconstitutional. Yet resort to those procedures would 
have required that the defendants forego their constitu­
tional rights of free speech and assembly, at the behest 
of an illegal ordinance and order, during the height of the 
controversy in which they were engaged. It would have 
required them to postpone exercising their vital constitu­
tional rights in deference to unconstitutional demands dur­
ing the very period when the vindication of those rights 
was most important to them.

In a labor relations context this doctrine means that 
unions and workers must forego their right to picket or 
strike, in deference to an unconstitutional ordinance or an 
illegal injunction, at the height of a strike or organizing 
campaign. It means that an unscrupulous city council or 
judge can break any strike or organizing campaign, even 
if the organizers or strikers are so sure that the ordinance 
or injunction is illegal that they are ready to risk jail if 
they are wrong. We submit that any state procedural rule 
which requires forfeiture of federal rights in deference to 
an illegal ordinance or court order is itself an invalid re­
straint. That is what this Court held in Staub v. City of 
Baxley and In re Green, 369 TT.S. 689.



(17)

We respectfully urge that the Court adopt the following 
formulation of Mr. Justice Clark, dissenting in Williams v. 
Georgia, 349 U.S. 375, 399:

“A  purported state ground is not independent and 
adequate in two instances. First, where the circum­
stances give rise to an inference that the state court 
is guilty of an evasion—an interpretation of state law 
with the specific intent to deprive a litigant of a federal 
right. Second, where the state law, honestly applied 
though it may be, and even dictated by the precedents, 
throws such obstacles in the way of enforcement of fed- 
ral rights that it must be struck down as unreasonably 
interfering with the vindication of such rights.”

If, however, these state procedural rules are not them­
selves unconstitutional, surely then the issue becomes one 
of weighing the state interest against the federal right. As 
the court said in Henry v. Mississippi, 379 U.S. 443, 447- 
448:

“ [A] litigant’s procedural defaults in state proceed­
ings do not prevent vindication of his federal rights 
unless the State’s insistence on compliance with its 
procedural rule serves a legitimate state interest. In 
every case we must inquire whether the enforcment of a 
procedural forfeiture serves such a state interest. If it 
does not, the state procedural rule ought not be per­
mitted to bar vindication of important federal rights.”

Here the state interest is in compelling respect for even 
illegal court decrees or city ordinances until set aside, while 
the federal rights involved are basic constitutional rights 
of freedom of speech, assembly, etc. We submit that in any 
such weighing the federal rights should prevail. That is 
additionally so because the state interest is adequately in­
sured by the fact that any person ignoring an injunction or 
an ordinance will do so on pain of criminal punishment if 
he is mistaken in his belief of invalidity.



(18)

Numerous state procedural rules, which may be valid in 
themselves, have been held to rest on a state interest too in­
substantial to preclude vindication by this Court of constitu­
tional or other federal rights. See, e.g., Staub v. City of 
Baxley, 355 U.S. 313; Liner v. Jafco, Inc., 375 U.S. 301; 
Construction & General Laborers Union, Local 438 v. 
Curry, 371 U.S. 542; Shuttlesworth v. City of Birmingham, 
376 U.S. 339.

Finally, it should be noted that the result so far reached 
in this case is neither dictated nor even supported by 
United States v. United Mine Workers, 330 U.S. 258. No 
member of the Court in that case even suggested that its 
holding was meant to give trial courts an unreviewable 
power to punish for contempt of injunctions issued without 
jurisdiction or in violation of constitutional limitations. To 
the contrary Mr. Justice Frankfurter in his concurring 
opinion, joined by Justice Jackson, declared (330 U.S. at 
310):

“To be sure, an obvious limitation upon a court can- 
cannot be circumvented by a frivolous inquiry into the 
existence of a power that has unquestionably been with­
held. Thus, the explicit withdrawal from federal dis­
trict courts of the power to issue injunctions in an 
ordinary labor dispute between a private employer 
and his employees cannot be defeated, and an existing 
right to strike thereby impaired, by pretending to en­
tertain a suit for such an injunction in order to decide 
whether the court has jurisdiction. In such a case, a 
judge would not be acting as a court. He would be a 
pretender to, not a wielder of, judicial power.”

The opinion of Mr. Chief Justice Vinson8 likewise declared

8 This opinion is labeled “ Opinion of the Court”  but had the 
assent only of Justices Vinson, Burton and Reed.



(19)

that an injunction need not be respected (330 U.S. at 293) 
“were the question of the jurisdiction frivolous and not 
substantial,” and that an order must be obeyed only if 
“ issued by a court with jurisdiction over the subject matter 
and person.”

Subsequent decisions of the Court have made it clear that 
the Mine Workers doctrine does not require obedience to 
any and every injunction. A  majority in In re Green, 369 
U.S. 689, clearly held that an injunction issued by a state 
court which lacked jurisdiction because of federal preemp­
tion could be challenged in contempt proceedings. Indeed 
Justices Harlan and Clark dissented on the ground that the 
Court’s opinion gave (369 IJ.S. at 693) “ only a passing 
glance at the Mine Workers decision.”

In Johnson v. Virginia, 373 IJ.S. 61, this Court set aside 
per curiam a contempt conviction where the defendant had 
refused to obey an order of a state judge to observe segre­
gated seating in the courtroom. The Court did not so much 
as advert to any such proposition as that the judge’s order 
bad to be obeyed until set aside; and of course the Court 
was correct, for not only was the order unconstitutional 
but even temporary compliance with it would have de­
prived the defendant of a basic constitutional right.

Similarly in Hamilton v. Alabama, 376 U.S. 650, the 
Court reversed per currant a contempt conviction of a wit­
ness who bad refused to answer questions until the pro­
secuting attorney would address her as “ Miss.”  Here 
again there is no suggestion in the Court’s opinion that the 
witness was bound to comply with the Court’s order until 
it was set aside. That case came from the same jurisdiction 
as the present, i.e., Alabama; and see also Fields v. City 
of Fairfield, 375 U.S. 248.



CONCLUSION

(20)

For the reasons stated it is respectfully submitted that 
the petition for rehearing should be granted.

Respectfully submitted,
J. A lbert W oll 
General Counsel, AFL-CIO
Robert C. Mater 
L aurence Gold

736 Bowen Building 
815 Fifteenth Street, N. W. 
Washington, D. C. 20005

Thomas E. H arris
Associate General Counsel, AFL-CIO 

815 Sixteenth Street, N. W. 
Washington, D. C. 20006

July 1967