Carey v. Westinghouse Electric Corporation

PETITIONER: Carey
RESPONDENT: Westinghouse Electric Corporation
LOCATION: U.S. District Court for the Southern District of New York

DOCKET NO.: 21
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 375 US 261 (1964)
ARGUED: Dec 11, 1963 / Dec 12, 1963
DECIDED: Jan 06, 1964

Facts of the case

Question

Media for Carey v. Westinghouse Electric Corporation

Audio Transcription for Oral Argument - December 11, 1963 in Carey v. Westinghouse Electric Corporation

Audio Transcription for Oral Argument - December 12, 1963 in Carey v. Westinghouse Electric Corporation

Earl Warren:

Carey, etcetera, petitioner versus Westinghouse Electric Company.

Mr. Hunt, you may continue your argument.

John F. Hunt, Jr.:

Thank you, Your Honor.

Yesterday Justice White asked whether the company's right to go to the board and to obtain a board adjudication of the controversy did not take a lot of sting out of what we said where the undesirable elements of bilateral arbitration, and thereby militate against a construction of Section 301 which we speak for.

I would like to elaborate on what I said yesterday, because I think that if there is such a mitigation, we are faced with a peculiar circularity, if the grievance is arbitrable, if 301 must be construed as my adversaries contend, and we go to the board, the day the 301 action has commenced, the board certainly would not enjoin the 301 action nor it would have authority to do so.

The court would not state a 301 action because of the reversal of this decision here now, and then we would proceed through the arbitration, and get an award, the IUE would get an award under this hypothesis and I think it is proper to assume for purposes of analysis that the board determination is contrary to the arbitrator's award, we then have the same conflict at that juncture that we have here.

One would think that the arbitrator's award would become nullified by a contrary board award, but the basis of Mr. Sigal's position is that that the arbitrator's award gives him a contract right which is heretically different from the board determination of a statutory right, but you cannot avoid the conflict.

Now, I think it was assumed yesterday that, of course, the arbitrator's award would fall against a contrary board award, but if this distinction between contract right and statutory right is valid, it is not entirely clear that the arbitrator's award would fall.

Now, the Congress did speak in the statute fairly directly on the subject of conflict between board determinations and determinations from any other source, not excluding arbitration and that section I referred to was Section 10 (a), I referred to it in my brief at Page 32; 10(a) –

(Inaudible)

John F. Hunt, Jr.:

Of the brief Page 32, Your Honor.

10 (a) which goes back to the Wagner Act provides that the power of the board to prevent unfair labor practices, matters cognizable under 8 shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement or otherwise.

Now, the omission of any -- here Congress is addressing itself the conflict and it talks only about conflict with an unfair labor practice concurrency.

There is no statement whatsoever to cover the situation of a conflict between a unit determination under Section 9 and a determination of the same controversy by some other means of adjustment established by agreement such as arbitration.

Do we infer from 10 (a) that the board's power over units is not paramount?

I think the board's power over units is the most unreviewable administrative determination that exists virtually in our law.

The board's discretion over units is one of the most unfettered agency discretions in our federal administrative system.

I think I infer that Congress could not even conceive of there being a conflict between a board-determined unit and a unit-determined determined by some other means of adjustment, agreement or a law.

I don't think Congress could conceive of this situation and had it done so, it certainly would have elaborated in 10 (a) when it addressed itself to the subject of concurrency and conflict.

From that I inferred that Congress did not intend that 301 be used to have an arbitrator review, or court makes no difference, review a board-determined unit and that is exactly what the review sought here concerns.

There is another aspect of this idea that the two proceedings can go along concurrently without doing any harm.

If we are wrong, we have no right to force the union into court under 301.

There shouldn't have been an action.

We should have just agreed to arbitrate.

We should've proceeded with arbitration.

Now if the harm, we say, should be avoided by affirmance here can equally be avoided by our going to the board and if the reason that is an -- would be an adequate answer is that the arbitrator may not proceed and avoid and resolve, I first referred to, do we have -- but because of reversal here, we go into arbitration; we don't force the union to go to court.

We go the board but to stop the arbitration, we ourselves have to go to court as well as to the board for declaratory judgment under 301 that the arbitrator should not be proceeding and therefore, should be enjoined from proceeding.

So I think you can't avoid the question of whether there is a conflict, whether the exercise of this concurrent jurisdiction presents a sufficiently serious problem that should not be permitted in the overall scheme of orderly adjustment of labor disputes.

Now if you --

Byron R. White:

(Inaudible)