Drake Bakeries Incorporated v. Local 50, American Bakery & Confectionery Workers International, AFL-CIO

PETITIONER:Drake Bakeries Incorporated
RESPONDENT:Local 50, American Bakery & Confectionery Workers International, AFL-CIO
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 598
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 370 US 254 (1962)
ARGUED: Apr 18, 1962
DECIDED: Jun 18, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1962 in Drake Bakeries Incorporated v. Local 50, American Bakery & Confectionery Workers International, AFL-CIO

Earl Warren:

In the next case, Number 430, counsel apparently been delayed by a late train and they’re not yet here so we will go to Number 598, Drake Bakeries, Incorporated, Petitioner, versus Local 50, American Bakery and Confectionary Workers International, AFL-CIO, et al.

Mr. Abelow.

Robert Abelow:

May it please the Court.

This is an appeal from a judgment of the Court Appeals for the Second Circuit.

The judgment affirmed an order of the District Court which stayed the plaintiff’s action for damages brought against the union pursuant to Section 301 (a) of the Labor Management Relations Act.

The company claiming that the union had breached the no-strike clause in its collective bargaining agreement.

Now, briefly and by way of background, Drake is a wholesale bakery company in New York and has a plant in Brooklyn which employs approximately 200 members of the bakery workers union.

New Year’s Day in 1960 fell on a Friday.

And in order to get freshly baked products to consuming public on Monday and Tuesday, Drake scheduled production for the Saturday following New Year’s Day, January 2nd and allowed the employees to take off Thursday instead.

In that way, they were able to get to the consuming public of baked products that were two days old instead of four or five days old.

The union objected to this and made it clear to management that they would come in on Thursday but they wouldn’t come in on Fri — on Saturday because that was, as they said, a violation of past practice and the employees had the right to anticipate a three-day weekend.

And making good their threat that the employees would not come in on Saturday, 85% of them didn’t come in.

The handful of employees who did respond to the company’s request for work was insufficient to the get the plant started.

We closed the plant.

We lost thousands of dollars worth of production and sales and a considerable amount of costumer goodwill.

Now, for the purpose of this appeal, I don’t think we need to discuss the merits of the union’s claim with regard to past practice.

Because I understand the decisions, though the merits of the underlying dispute are matters that will be taken up by the trial court upon a full hearing.

What — what has happen here is that instead of utilizing the available contractual grievance and arbitration machinery with regard to this underlying dispute of schedule, the union instigated, encouraged, it advised its employees that they did not have to report on Saturday and in fact they didn’t.

They made good their threat that there would be a strike.

Now, Drake promptly instituted an action under 301 (a) and the union just as properly made a motion to stay the action on the ground that the issue was arbitrable.

And the case came before Chief Judge Sylvester Ryan of the District Court in New York and the motion was granted.

Thereupon, Drake took an appeal and a panel of — of the judges of the Court Appeals consisting of Judges Swan, Lumbard and Moore unanimously reversed, deciding that the breach of the no-strike clause was not covered by the arbitration clause.

That the union had flaunted the grievance and arbitration machinery and hence the use — the union’s motion for a stay had been improperly granted.

Then the union moved for a rehearing en banc and that application was granted.

And at the time the rehearing came on before the judges of the Second Circuit, they were six in number, Judge Swan having since retired and the decision of the six judges was right down the middle, they split evenly.

Judge Lumbard, Judge Moore, Judge Friendly voted to sustain the original determination of the Court of Appeals, namely, that we could go forward with our action.

Judges Clark, Waterman and Smith voted to reverse that determination and sustained the decision of the District Court on the authority of the Steelworkers cases and to — and the other case was left.

William J. Brennan, Jr.:

If I had the practical —

Robert Abelow:

The court —

William J. Brennan, Jr.:

— effect I gather of — nothing stand the District Court’s judgment, did it?

Robert Abelow:

Well, that seemed to be a question because the six active judges then took a vote on that.

What did the evenly divided court mean?

And there was a vote of four-to-two on that, with judges Lumbard and Friendly still maintaining that the original Court of Appeals’ decision stood but the four other judges outvoting them and so that’s the way that was decided.

William J. Brennan, Jr.:

So we have and like, we do have a majority vote that what comes to us is the judgment of the District Court.

Robert Abelow:

That is correct.

And so, we are here facing a stay of the action and thus the case reaches the — this Court.

Now simply stated, the issue that’s presented for determination here is whether a breach of the no-strike clause in the Drake contract is this — is within the scope of the arbitration clause in the Drake contract.

And there is a second issue and that is whether the union having breached the grievance and arbitration clauses by advising its employees — its members not to work and causing what we say was a stoppage and a strike whether the union may now use these very clauses as a shield to block judicial redress for the very violation —

William J. Brennan, Jr.:

Although I gather —

Robert Abelow:

— it assumed.

William J. Brennan, Jr.:

— your position — at least, he didn’t say you could rescind the contract by reason of their failure to resort for the (Inaudible)

Robert Abelow:

Well, haven’t taken any position with regard to rescission of the contract.

The —

William J. Brennan, Jr.:

Well, you do take the position you’re entitled to damages —

Robert Abelow:

We do take that position.

William J. Brennan, Jr.:

— would breach the no-strike clause.

Robert Abelow:

Under 301 (a), yes, sir.

William J. Brennan, Jr.:

(Voice Overlap) —

By virtue of the contract.

Robert Abelow:

By virtue of Section 301 (a).

Potter Stewart:

And the provisions of the contract.

Robert Abelow:

And the provisions of the contract, which I will refer to in further detail a little later in my argument.

Byron R. White:

You think — you also take the position that even if the arbitration clause covers arbitrating the breach of the no-strike clauses, its view from doing it because it was (Inaudible)?

Robert Abelow:

I think that would be so too.

But actually —

William J. Brennan, Jr.:

What does the (Inaudible) mean here?

Robert Abelow:

Actually, we haven’t reached that because I — as — as we say, the arbitration clause by the very wording, excuses the arbitration of a breach of this kind —

William J. Brennan, Jr.:

But that is —

Robert Abelow:

— of courts.

William J. Brennan, Jr.:

— that is breach of the no-strike —

Robert Abelow:

Breach of the no-strike.

William J. Brennan, Jr.:

— but then it is not itself an arbitrable question, is that it?

Robert Abelow:

Sir?

William J. Brennan, Jr.:

Is not arbitrable?

Robert Abelow:

It is not arbitrable.

William J. Brennan, Jr.:

Under the arbitration?

Robert Abelow:

But aside from the — the point that just have been made, the courts themselves had taken the position.

And they — they are — the decisions are in my brief that the nature of the violation is such, that even under the broadest of arbitration clauses, it is not contemplated under the history of Section 301 (a) that breaches of a no-strike clause claims for damages must be submitted solely to arbitration.

William J. Brennan, Jr.:

Well, this isn’t to say that the parties couldn’t say expressly in so many words as they did.

Robert Abelow:

I agree with you.

Had they — they — the parties can agree to arbitrate anything including damages for a strike.

But in our particular case, we say there is no such language and as a matter of fact, as I will try to point out a little later, when I read the clauses, I think we have language to the opposite effect.

Byron R. White:

Well, wasn’t the breach also the arbitration clauses (Inaudible)

Robert Abelow:

Both.

Breach, we say, was of the grievance and arbitration clause and it was also of the no-strike.

Byron R. White:

Would you say that the (Inaudible) reach the arbitration clause, the (Inaudible) that even if the — even if the breach (Inaudible) clauses covers the — the arbitration completely?

Robert Abelow:

We would have a right to sue under 301 (a) and I would find support for that in the decisions of some of the other Circuits.

Now, thus far, the issues which we have discussed have been passed upon by the First, the Fourth, the Fifth, the Sixth and the Seventh Circuits.

And each one of them had held that the breach of a no-strike clause was not within the scope of an arbitration clause even where the arbitration clause was phrased in broad terms.

The Second Circuit judges who consider the question in this case split evenly.

And about two months ago, the Third Circuit in the Yale & Towne case also split.

The majority holding that the claim for damages there had to be arbitrate and — arbitrated and a suit could not be maintained.

Now, getting down to the Drake clauses, they appear on pages 6, 7 and 8 of the record.

The first paragraph under the grievance procedure is admittedly broad and provides that the parties will adjust complaints, disputes and grievances arising between them involving questions or interpretation or application of any clause automatic covered by this contract directly or indirect a very broad clause admitted.

Yet, in the following paragraph, you have this sentence, still under (a), “It is agreed that in the handling of a grie — of grievances, there shall be no interference with a conduct of the business.”

And we say that is an exception to the broadness of the proceeding language.

Under subsection (b), the last sentence provides that if there is no satisfactory adjustment reached, either party shall have a right to refer the matter to arbitration.

It doesn’t say that they must, it doesn’t say that arbitration is the sole and exclusive remedy and it doesn’t say that we can’t sue under 301 (a) or any other section.

The no-strike clause which appears at the top of page 8 is equally broad and that too contains a limitation.

The clause says that there shall be no strikes, boycotts, interruptions of work, stoppages, temporary walk — walkouts or lockouts for any reason except one.

Robert Abelow:

Except that if either party shall fail to abide by the decision of the arbitrator pursuant to the remaining provisions of the contract.

And again, we say that this very language precludes in itself the right to resort to economic force, economic action and to strike and whether it be called a strike or a stoppage or a temporary walkout, they’re all precluded by the clause.

So that reading the Drake contract clauses and without reference to any other broad principles of law, we say that Drake never agreed to submit if any claim for damages or a breach of a no-strike clause to arbitration.

That the clauses read together plainly state that there is to be no interference with business while grievances are being handled, plainly state that strikes include stoppages of any kind and plainly say that the union may strike on one condition during the life of the contract and one condition only and that is if the employer fails to live up to an arbitrators’ award.

And on the argument that we have not agreed to arbitrate, this issue, aside from all other considerations, we believe that the suit was properly brought and may not be stayed in an arbitration.

I’m getting briefly to Section 301.

The basic analysis of Section 301 is of course this Court’s opinion in the Lincoln Mills case.

And this Court like the Senators who drafted the clause, which ultimately became Section 301, regarded the no-strike clause as the very core of the collective bargaining agreement.

I know the language is familiar to the Court but there is one short paragraph that seems to sum up what I want to say about the no-strike clause.

And it’s the familiar paragraph which reads, “Plainly, the agreement to arbitrate grievances, grievance disputes is the quid pro quo for an agreement not to strike.

Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organization.

It expresses a federal policy that federal court should enforce these agreements on behalf of or against labor organizations and then industrial peace can best be obtained only in that way.”

Now, those principles were again repeated and reiterated in the Steelworkers cases and particularly — particularly in the Warrior & Gulf Navigation case where the Court stressed that the crucial importance of the arbitration and grievance machinery came about because it was a corollary to the union’s relinquishing its right to strike.

And thus, on the assumption of the equally and crucially importance of the no-strike clause, the decision in Lincoln Mills made federal law applicable to 301 cases and on behalf of the union specifically permitted enforcement of the arbitration clauses contained in that collective bargaining agreement.

Now, the Drake case, this case, as we see it, presents the other side of the coin.

We say that if the union side of the quid pro — quid pro quo under 301 (a) requires judicial redress then the employer’s side of the quid pro quo, namely, the no-strike portion of the quid pro quo — pro quo certainly requires judicial redress also.

Answering the question that I think I’ve been asked through the bench, this Court recently in the Lucas Flour case had said that a strike during the term of a contract violates the grievance and arbitration clauses in the contract even when there isn’t a no-strike clause included in the contract.

And this basically is so because the grievance procedure envisions a method of resolving grievances which is inconsistent with the use of economic force and is incorporated in the labor agreement to prevent a force of that kind.

Potter Stewart:

But in that case as I remember, the Court construed that collective bargaining agreement to provide for compulsory terminal arbitration.

Now, the agreement before us in this case does not provide for compulsory arbitration as the exclusive method of settling agreements as you pointed out, it’s optional.

Robert Abelow:

That’s right.

Unfortunately, the lower courts didn’t agree with me and with what you have just said.

I believe, too, that it does not provide for compulsory arbitration of a no-strike clause.

But I do recognize what you say the distinction is between the Lucas case and our own.

Potter Stewart:

So that in this case, a good argument could be made at least that the strike was or at least have better or different argument could be made than — then was available in Lucas Flour —

Robert Abelow:

In Lucas —

Potter Stewart:

— to say that a strike was not in violation of the collective bargaining agreement.

Robert Abelow:

(Voice Overlap) —

Potter Stewart:

But that I take it would go to the merits of your lawsuit in the District Court —

Robert Abelow:

That is right.

Potter Stewart:

— that’s not before us.

Robert Abelow:

Don’t forget that in Drake we have both a no-strike clause and an arbitration clause.

In Lucas, you only had, if I recall, the grievance machinery and the arbitration machinery.

Potter Stewart:

But it was compulsory and binding.

Robert Abelow:

But it was according to the majority opinion, compulsory and binding.

Potter Stewart:

Yes and as so construed.

Robert Abelow:

That’s right.

Now, there seems to be another reason why it — it just isn’t sensible or practical to think in terms of the grievance machinery and the arbitration machinery in — as a method of handling claims of the nature asserted by Drake in this case.

Grievance machinery, arbitration machinery are inserted in contracts to take care of the ordinary day-to-day problems that arrive in any — rise in any collective bargaining relationship.

And ordinarily there, the arbitration and grievance processes help to keep the industrial peace.

But in the breach of a no-strike situation, the peace has already been broken.

The grievance machinery has been bypassed.

We’ve had a strike.

And it seems a futile thing for an employer now to be required to sit down, to do the various steps of the grievance machinery or sit down with the union representatives and discuss with him the question of whether or not there should be damages.

And any arguments to the contrary would rest upon the assumption that the draft isn’t Section 301, one of the most important sections of Taft-Hartley.

After laboring on this question for so many hundreds of hours, we’re totally unaware of the fact that practically, every collective bargaining agreement in the country, I think that the percentage is in the very high 90, contains grievance and arbitration procedures.

And if the union is correct, that Section 301 actions for a breach of a no-strike clause must be stayed pending arbitration then it would seem to me that Section 301, itself, is absolutely meaningless to affect its primary purpose that the terms of industrial strike by providing a federal judiciary remedy for a breach of the two unique and crucial provisions of any collective bargaining agreement, namely, the promise of the union not to strike and the promise of the employer to arbitrate.

Looking at Section 301, we find certain agency rules set forth under subdivision (d) and subdivision (e).

And these rules that would seem would be mainly applicable to no-strike clause situation.

And if the Congress had intended violations of the no-strike clauses to be subject to the arbitration procedure, it seems to me it would not have provided an agency rules for this type of actions or certainly they would have no pertinency before an arbitrator.

Earl Warren:

Would you mind repeating the percentage of arbitration and no-strike agreements that there in existence?

Robert Abelow:

I have it — I have it in my brief exactly and according — according to a report of the Bureau of National Affairs that appears on page 16 of my brief which they say that 99% of the contracts studied by the Bureau of National Affairs contains some grievance procedure.

Indeed, 100% of the contracts in manufacturing establishments contained grievance procedure.

Further, 94% of all contracts provide for arbitration.

And this quote, which is a footnote on page 16 of my brief, was taken from the volumes to which we subscribed called “collective bargaining negotiations of contracts” issued by the Bureau of National Affairs.

Does that answer your —

Earl Warren:

Yes.

Robert Abelow:

— question, Mr. Chief Justice?

Now, there is another reason why a suit of this type should be permitted and the union should not be allowed to have it stayed and have us resort to arbitration.

And it’s a — and it’s a reason that has been used and applied by almost every Court of Appeals that has considered the question with the exceptions that I have mentioned.

Robert Abelow:

That is that it seems inconsistent to allow a union to shield itself behind the grievance and arbitration provisions which it has flagrantly violated.

Some of the decisions which have permitted lawsuits have rested upon the scope of the arbitration clauses.

Other decisions which I have quoted in our brief rested upon this theory that the union having done something wrong, they cannot now use the grievance and arbitration machinery as a shield.

And still other courts have reached the same decision without adapting either of the two rationales.

But in any event, the result is the same.

And we submit that they practically — at that — this practical unanimity in the basic considerations of the industrial peace should make it the rule of law that a union will strike during the life of a contract at its peril and that it may not take the easy path out and have a — an arbitrator whose tenure of office depends upon the goodwill of the parties’ assessed damage.

But rather that they should — shall be accountable to a higher authority to a court which has not beholden for its tenure of office upon the will of the parties and this will be the real deter.

This will be the true deterrence to the strikes that have occurred.

Now, Judge Swan in the original panel decision —

William O. Douglas:

Would the —

Robert Abelow:

Excuse me?

William O. Douglas:

As you construe this agreement, would you think that the arbitrator would have power to — if he thought you were right and the union was wrong that — to award damages?

Robert Abelow:

I — I would so construe it.

I think that an arbitrator under the broad powers that he has could award damages.

In fact, there are a handful of cases where damages have been awarded by arbitrators under their board powers.

William O. Douglas:

I mean under labor collective bargaining agreements.

Robert Abelow:

Yes, sir.

William O. Douglas:

Are those cited in the briefs?

Robert Abelow:

They are cited in — in Mr. Meyer’s briefs.

But I don’t think there’s any dispute about that.

I would — I would say that if I decided to waive my right to go to court under 301 (a) and I was willing to go to arbitration, I don’t think that I would have any question about the power of the arbitrator to award damages.

But peculiarly, very peculiarly, in this very case, in this very situation with Local 50, two years ago, when they pulled an overtime strike suddenly decide that nobody works overtime.

And we call it a strike and I sued for damages.

I went before an arbitrator.

The union came in and said the arbitrator had no power to hear this case.

And the arb — and the — and they frightened that poor arbitrator so that they couldn’t get her, it was a member of the State Mediation Board to go forward with that case.

I couldn’t get the case started.

The case was put over because the union threatened to walk out of the hearing if the — if the arbitrator started the case and said that, “If I wanted to make them arbitrate, I would have to get a court order or serve a 10-day notice under the New York statute.”

So while —

William O. Douglas:

But we — we —

Robert Abelow:

— I agree that they have the right —

William O. Douglas:

We can’t decide that case here.

Robert Abelow:

No, no, but I — while I agree that the union was wrong there, our own experience in — with this union under this contract has — has soured us, if I may use that expression on —

William O. Douglas:

I would think — think that would be an irrelevancy here, too, wouldn’t it?

Robert Abelow:

It is — it is an irrelevancy but I thought I — I was trying to answer your question.

William O. Douglas:

Has the — had the New York courts gone into this question of the —

Robert Abelow:

Yes, they had.

And under the question of the right of the — of the arbitrator to award damages —

William O. Douglas:

Yes.

Robert Abelow:

Yes, they have and as the Court of Appeals’ decision that they do have the right to award damages but our point being that we don’t have to go to arbitration because we have not agreed to go to arbitration.

And we would prefer to avail ourselves of the federal remedy under 301 (a).

I want to read one short paragraph from Judge Swan’s original panel decision, which sums up the point I just made permitting the union to invoke the arbitration procedure after they have reached the no-strike clause.

Judge Swan said, “Even the absence of the specific no-strike clause, it has been held that resorting to a strike, instead of utilizing the contractual arbitration machinery, prevents the union from claiming that the strike must be arbitrated.

Where the no-strike clause is as specific as in the case at bar, it seems clear that the parties intended the grievance arbitration procedure does plan strikes as a means of resolving industrial disputes but did not intend to subject alleged breaches of the no-strike clause to arbitration when a strike was resorted to before making any attempt to utilize the grievance arbitration procedure.”

Now, a few moments ago, I noticed that the Solicitor General was in the Court.

I don’t see him now but I — he wrote on this subject.

And in analyzing and — and his article appeared in the Harvard Law Review which was written after the Lincoln Mills case and his observations is set forth on page 26 of my brief.

And there, he analyzed the Lincoln Mills case and set forth what he said where the three fundamental rules with — which have had established.

But his concluding paragraph is mostly interesting.

These rulings establish the machinery necessary for the effective judicial enforcement of agreements to arbitrate an arbitration awards except when a union resorts to a strike upon an arbitrable grievance.

Consequently, when Solicitor General Cox writing as he did put in those words in his analysis of the Lincoln Mills decision, it would seems to me that he, too, recognize the fundamental inconsistency of arbitrating a claim for damages arising out of a strike.

Now, I have not discussed the merits of the underlying dispute and do not intend to do so.

There seems little doubt that the dispute was one that could have been arbitrated.

We scheduled this production 12 or 14 days before the schedule went into effect.

We had numerous conferences with the committee of the employees and the union representatives.

We worked out a modus operandi for handling the situation at Christmas.

It’s a very disappointing one.

But when it came to repeating that operation for the New Year’s holiday, we were told nothing doing — there’ll be no work on Saturday.

And when we’ve assisted in our schedule and they had 85% to 95% of — 85% to 90% of our people not to come in, we call that a strike and started this action.

We submit for the reasons that I outlined and with the further reasons that are in my brief that the decision in this case should permit the prosecution of this case under 301 (a).

Robert Abelow:

I might say parenthetically that the courts, as you have noticed, seemed to be split on it.

It’s a matter of considerable concern in the labor rela — labor management relations community.

And above all, we believe that if this Court were to plainly stay —

Earl Warren:

Well, your time has expired now, Mr. —

Robert Abelow:

We would be procuring industrial (Voice Overlap) — thank you, sir.

Earl Warren:

Mr. Meyer.

Howard N. Meyer:

May it please the Court.

There is one point that I want to come to at once, it wasn’t part as of my plan to oral argument but it arose from a question which Mr. Justice Stewart asked of Mr. Abelow concerning the question of whether there is a compulsory terminal arbitration provided for in this contract.

Mr. Abelow made the argument that it was not in the District Court.

He abandoned that in the Court of Appeals.

He does not press it in his written brief here and of course, I haven’t responded to it in my brief and it is now raised for the first time in oral argument.

I’m quite prepared to deal with it and I will say most emphatically that this is an agreement providing for compurs — compulsory terminal arbitration as the Court can see while looking at pages 6 and 7 of the record.

Potter Stewart:

And your strike was clearly in violation of this agreement, is that correct?

Howard N. Meyer:

It was not, sir.

And I would like to go into the facts.

I want to say something else, too.

Mr. Abelow stated, during his oral argument, that there was a threat that there would be a strike.

I would like to say now that there is nothing in the record to support that statement, that in the pleadings and in the affidavits, we have denied that there was a strike and to the extent that it is necessary for me to make clear to the Court that these matters are not all black and white.

That there are many shadings and gradations where there is multiple absenteeism as this case involves, that there definitely is a very tenable question, a very meritorious question which a trio tribunal must pass on as to whether or not there was a strike.

Potter Stewart:

But that would be a question for the District Court if the District Court has jurisdiction or for the arbitrator if — if you’re correct.

Howard N. Meyer:

Well, the arbitrator if —

Potter Stewart:

In any event after the — after the —

Howard N. Meyer:

— if I’m correct.

That’s right.

Potter Stewart:

That’s under the —

Howard N. Meyer:

That’s right but —

Potter Stewart:

The person who’s got to decide the terms and merits of this controversy.

Howard N. Meyer:

Another broad statement which Mr. Abelow made about the Circuit Court cases involving cognate or related questions is that many cases have held that where there is a strike in violation of the arbitration clause, the company may sue, with the implications that irrespective of the threat of the arbitration clause, it has been so held.

Now, I’ve carefully going through all those cases.

And there isn’t one that so holds — there is one, Cameron, Lodge 12 against Cameron Iron — Iron Works which says so in dictum.

Howard N. Meyer:

But in that case, it’s only a dictum.

In every other case outside of the Second Circuit, which I’ll come to in a minute, the question has always been, was there a waiver?

Did the union — and I think in several of the cases, the union admitted there was a strike?

And in the more recent cases including the Sinclair, which has been argued today, the question that was decided there was only one and that is the construction of the wording there which was different from the wording in the Drake case.

Now I don’t want to address myself to the wording in the Sinclair case, that’s the counsel in that case to consider.

But I do say that under the wording of our arbitration clause, we do have an agreement providing that the issue involved shall be submitted in writing, the matter shall then be taken up for adjustment between the union and the plant manager.

The — either party shall have the right to refer the matter to arbitration.

Should any party fail upon written notice to appear before the arbitrator, the arbitrator may proceed with the hearing.

Now, I say take them together, those clauses constitute and have always been construed between us as a practical matter to constitute an agreement for compulsory terminal arbitration between this union and this company.

Now, as to the merits, I’m not going to try to argue before the Court who was right and who was wrong in what happened in 1959.

But I do think that enough of the background should be stated so that the Court can see that an arbitrator would be well within his powers if he held that, as he might, there was no strike or, as he might, that the absenteeism that occurred on January 2nd, 1960 was provoked by the mishandling by the company of its labor relations or if he held that by reason of the past practice, the employees, involved for good and sufficient reasons, believed in good faith, they had a right to stay home.

Now, the word “strike” of course is an ugly word.

And one thing that we should come to at once is that there’s a tremendous difference and it isn’t necessarily recognized very clearly in the report of decisions between a strike — when the strike is the culmination of negotiations for a new contract and an attempt to impose new economic terms on one party and the other and what has sometimes been characterized as a strike but which is better characterized as a wildcat or a stoppage or something to that effect which occurs during the term of a stoppage.

Now, characteristically, and it’s important to remember this, a wildcat is a response.

It’s a response to a provocation of one sort or another.

To say that it is a response to provocation, is not necessarily to say that it is correct or justified.

But when the parties have agreed, as I say that they did here, that all complaints, disputes or grievances arising between them involving any matter covered by this contract or any act or conduct or relation between the parties hereto directly or indirectly, when the parties have agreed that that is the area that is to be decided upon by an arbitrator, what is the basis for a judicial ruling that the dispute, as to whether or not there was a strike, whether or not there was a threat to strike, which I say you will find nowhere in this record that there was a threat to strike, that whether or not conduct of the type involved here can be characterized as a strike?

Let me describe the conduct for a minute.

Here, we have a situation where for better or for worst for 15 years we’ve been in collective bargaining relationship.

We want them to prosper the number of dues paying members that we have depends on their prosperity.

For 15 years, they have worked on a Monday to Friday a week with the past practice as we claimed that when a — holiday comes on a Friday, the employees are given a three-day weekend.

On December 16th, two — less than two weeks before Christmas, they notified their employees that they would be deprived of their three-day weekend.

It may not seem very much in the multitude in this great affairs of the world but to the people averaging between $100 and $120 a week working for Drakes at the time it came, it was something which stirred displeasure and unrest among them.

The union was aware of it.

Now, let me say another thing about wildcat strike.

Earl Warren:

Well, did Christmas come on Friday?

Howard N. Meyer:

But Christmas came on Friday that year.

Saturday was the day after Christmas and then it’s Sunday.

Earl Warren:

Oh, yes, oh yes, I see.

Howard N. Meyer:

And Mr. Abelow has carefully omitted from his oral argument the fact that there were two controversies which arose simultaneously and through the efforts of the union who was in constant negotiation from the day that we got the notice of the schedule change.

Howard N. Meyer:

We were able to persuade enough people to come in on the day after Christmas even though we took the position in good faith that we didn’t think they were obliged to so for them to conduct production.

80 people came in out of a 176.

They don’t claim that’s a strike.

On the day after New Year’s —

Potter Stewart:

How about the day before Thursday which the company wanted to give them off, did they take that off or did they come in?

Howard N. Meyer:

I don’t recall whether there’s anything in the record on it.

My belief is that they shut down on Thursday.

My belief is that they shut down.

And —

Potter Stewart:

So they had their five-day week.

The only thing is —

Howard N. Meyer:

Well, the question wasn’t the five —

Potter Stewart:

— they didn’t have that three-day weekend.

Howard N. Meyer:

That’s right.

The question was three consecutive days together.

Now, another thing which —

Potter Stewart:

But the company gave them off — gave them a day off in the Thursday —

Howard N. Meyer:

We —

Potter Stewart:

— before Christmas (Voice Overlap) —

Howard N. Meyer:

We are not claiming that the company was depriving them of anything except one thing and that is three consecutive days.

Potter Stewart:

Now, this then was a grievance, I suppose, under —

Howard N. Meyer:

And —

Potter Stewart:

— collective bargaining agreement.

Howard N. Meyer:

— this then was a grievance.

Potter Stewart:

And did the —

Howard N. Meyer:

That’s right.

Potter Stewart:

Did the — did the union or the company make every — any effort at all to proceed under the contract without —

Howard N. Meyer:

We —

Potter Stewart:

— that grievance?

Howard N. Meyer:

We sent them a notice demanding arbitration.

Howard N. Meyer:

We couldn’t have gotten the arbitration in the Mediation Board calendar before January 26.

Potter Stewart:

Well, arbitration under the contract that comes —

Howard N. Meyer:

Our operation —

Potter Stewart:

— it comes only at the end of — of a grievance, the prosecuted grievance.

Howard N. Meyer:

Well, that’s right.

Meanwhile, you — you have to remember these two things.

These things don’t happen on a compartmentalize way like pleadings in an action.

Potter Stewart:

I know.

Howard N. Meyer:

A grievance comes up but while the grievance is pending, while we dispute their right to do this, we’re sitting down talking to them, as this record will eloquently state even in the affidavit in opposition to our motion for a stay, trying to work out some compromised arrangement.

Now, let me say this.

All of these would have been unnecessary.

This action never would have been begun.

If the company, which for 15 years hadn’t deprived their employees of a three-day weekend, had simply decided a couple of weeks earlier to do it and given us a chance to get a declaratory ruling by an arbitrator.

And it was the fact that they waited until the last moment when it was no longer possible to process the grievance through to a point where we could get a ruling by an arbitrator in advance of the day in question.

That was what resulted in the difficulties that we are confronted with here.

The employees who are human beings, who each have their own individuality and integrity and make decisions for themselves, the business agents who are not task masters and overseers don’t stand over them with a whip saying, “You must work because the company has a management prerogative.”

The employees decided for themselves.

They were going to take the risk of such reprimand or disciplinary action as the company might see fit to impose on them and they simply stayed home on January 2nd except for 26 of them despite our efforts.

Potter Stewart:

Not — what I’m really trying to get out was that the union’s position that this decision of the company that the employees had to work on Friday was a violation of the collective bargaining agreement or was not because —

Howard N. Meyer:

We —

Potter Stewart:

— decided one point that — just let me explain to you my doubt and my uncertainty —

Howard N. Meyer:

Right.

Potter Stewart:

— that I understand this, one point or more than once, you told us that the union prevailed upon the employees to work on the Friday after Christmas, at least 80 out of 174 of them.

Howard N. Meyer:

Right, right, right.

Potter Stewart:

And at the same time, you told us that the union has taken the position that they had no duty to work on the Friday.

Howard N. Meyer:

That’s right and it was precisely because of that as you will find in the record, that we filed immediately and the record does show, we filed a grievance demanding arbitration of the rate of pay for working on that Saturday —

Potter Stewart:

Well, that would be of course a (Voice Overlap) —

Howard N. Meyer:

— because it was unprinted — precedented circumstances in which to work.

Potter Stewart:

The pay rate, I suppose, would be — if you were negotiating at that level, this — this implies a concession that there — that it’s not a violation of the agreement that they were concerned.

Howard N. Meyer:

Not at all.

Potter Stewart:

Right.

Howard N. Meyer:

What were we to do?

We’re confronted here with what you might call a case of brinkmanship.

One of us is right and the other is wrong as to whether or not the company had a right to change its schedules.

We take the position as it was on December 16th when the company announces its change of schedule.

They say, as they always do, management prerogative and everything else.

We say, past practice and the sort of things that union say (Voice Overlap) —

Potter Stewart:

This is typically a matter for the grievance machinery.

Howard N. Meyer:

Right.

That — that’s exactly right.

But it’s also a matter for adjustment machinery.

While we are grieving about it, while we can’t arrive at an agreement about it before December 26th comes, neither can we get a ruling by an arbitrator before December 26th comes.

And so, in order to minimize or mitigate or reduce the area of difficulty, we turn to the employees and say, “How many of you want to come in even though we don’t think you’re obliged to come in?”

Isn’t it preferable that we should do that rather than simply sit back and say we have a grievance, don’t come in or on the other hand, are we obliged to say to them, “You must go in and we’ll arbitrate later?”

And if it turns out they had no right to make you go in, make you get a dollar or two more.

Now, I say this, and I was starting to say this before, that workers are human beings, that there are emotional problems of a very serious and objective character involved in this type of change of schedule and that the workers might justifiably feel that a dollar or two more is not adequate compensation for having their right to a three-day weekend taken away.

Now, this has nothing to do with the merits.

Only an arbitrator can say whether or not they had the right to change that schedule.

Also, only an arbitrator can say whether the complex of circumstances which occurred here, including our appearing at the plant and negotiating, talking to the people, trying to prevail upon them to come in, whether this can be characterized as a strike or a stoppage in violation of the agreement.

Now, we’re here under an agreement, which we say and we insist, provides for compulsory terminal arbitration, which has always been administered in that way.

And we say that the concurring opinion of Judges Brennan and Harlan in this (Inaudible) American case dispose of it very adequately.

On examining the arbitration clause, they say the Court may conclude that it commits to arbitration any dispute, difference, disagreement or controversy of any nature or character.

With that finding, the Court will have exhausted its function.

Now, I say we have a broader clause than that.

And once it is found that our clause is broader and that our clause provides as it does that involved in the arbitration machinery should be all complaints, disputes or grievances and so on, I’m not going to repeat the wording, that once that is found, that the Court as Chief Judge Ryan correctly held, exhausted its function.

You might say that we are here as a suitor.

While we are here on a motion to stay, you could also call our motion for procedural purposes of counterclaim under Section 301 of the Taft-Hartley Act.

We are seeking to enforce judicially, our right to arbitration under this contract.

And we say that that must — it needs — must be adjudicated prior to any question of whether or not there was a strike, who was responsible for the strike, what the damages were.

William J. Brennan, Jr.:

You mean that, specifically, it maybe that this is act or conduct.

Howard N. Meyer:

Exactly.

I don’t think there’s any doubt about it.

I don’t think that as I —

William J. Brennan, Jr.:

Parties have agreed?

Howard N. Meyer:

That’s right.

William J. Brennan, Jr.:

(Voice Overlap)

Howard N. Meyer:

And let me — let me say this one — one more point which I should mention in this connection.

It is also quite clear under this contract, as it was not in many of the mid-west cases that led to the Sinclair case.

It is quite clear under this contract that the employer may grieve, that the employer is visualized as one who may make a claim in arbitration.

And I have presented in point one of my brief an analysis of the clauses providing for it, the employer made — the arbitrator shall be designated upon the written request of either the employer or the union and so on.

Now, Mr. Abelow in his brief has made much of the claim that the only solid gain by an employer in a contract such as this is the no-strike clause.

I happen to disagree with that interpretation.

I think an employer gets a lot more from an agreement than merely a no-strike clause.

But even on his theory that it’s the only thing that he’s really concerned about, if that’s so, what else would he want to take to arbitration but that since that is what he claims to be able to grieve about and he has reserved the right to go to arbitration?

Now, as far as this case is concerned —

William J. Brennan, Jr.:

May I ask you, Mr. Meyer, suppose in fact the — these employees and through the union spokesman had said, “Alright, we’re going on a strike tomorrow morning on the 2nd.”

No one had shown up.

Would you still be taking the position that that would be conduct or an act coming within the —

Howard N. Meyer:

Now —

William J. Brennan, Jr.:

— arbitrable (Inaudible)?

Howard N. Meyer:

I don’t mean to be facetious.

But what you are saying is suppose they had by an instrument in writing, duly acknowledged, said, “We hereby declare we are going on strike because you did this.”

William J. Brennan, Jr.:

Yes.

Howard N. Meyer:

I would still say that on the wording of the Drake contract that we would be entitled to refer to arbitration because that’s what we bargained for.

When we drew this contract and drew this arbitration clause, this is what we agreed upon, that when there was to be any complaint, dispute or grievance concerning any matter or controversy between the parties that an arbitrator should pass upon it.

Now, a question is raised about so-called “judicial redress”.

It happens that arbitrable redress is not only more flexible, not only more suitable both for the needs of the parties and their situation but it also may be more draconic and more effective for the purposes of the employer, as the New York courts held in Ruppert against Egelhofer which is cited in my brief.

There are two cases in the New York Court of Appeals cited in my brief which are very interesting and which I think are very susceptible to be absorbed into federal law under the Lincoln Mills dictum.

Number one is the matter of the Printing Pressmen stereo — Newark Stereotypers which held that there’s no doubt that an arbitrator can render damages for a violation of a no-strike clause.

The other is Ruppert against Egelhofer which provides the clue and gives the way for solving the type of problem that was presented by Number 13, which is still pending at this term, and one phase of the Sinclair case that we are not confronted with, namely, on — injunctive relief where appropriate or necessary where in the hypothetical case presented by Mr. Justice Brennan.

Howard N. Meyer:

The employees wrongfully and say in writing, “This fellow is a strike and we’ve hit the bricks and we’re out.”

I say that an arbitrator under Ruppert against Egelhofer has the right to adjudicate that.

The employer has a right summarily to go to court and get an order confirming that at least as the New York Court of Appeals has construed New York State’s own Anti-Injunction Law.

Now, I’m not here to argue any other questions under Norris-LaGuardia or anything else.

But I do say this, that if the issue in this case is said to depend on whether arbitration is more effective or more adequate as a means for dealing with stoppages that Ruppert against Egelhofer and manner — matter of Printing Pressmen show very clearly that it can be more effective.

Potter Stewart:

Well now, these are — that’s interesting and perhaps persuasive — arguably persuasive as a matter of policy.

The — but we’re faced with however, is an act of Congress.

Congress of the United States which had before us and through its Committee proponents of various policies determined finally to confer upon the Federal District Courts jurisdiction over violations of bargaining — of contracts made by labor organizations between employers and labor organizations and industries affecting commerce.

And your argument would lead in it’s ultimate reach to the — to the obliteration of such jurisdiction —

Howard N. Meyer:

If Your Honor please —

Potter Stewart:

— except to the enforcement of arbitrational orders.

Howard N. Meyer:

If Your Honor please, I’m here invoking that of jurisdiction.

Just — let’s get that clear.

I’m here invoking that jurisdiction to enforce their promise to arbitrate all disputes or agreements or disagreements between us.

Now, many arbitration clauses are not as broad as ours.

Many fact situations may present different problems.

Many unions may as the union in Lucas Flour did, choose to waive arbitration.

I looked for the first time today at the record of Lucas Flou — Flour, when I went upstairs to the library, and I saw there that there was no reason why the union there couldn’t have moved in the Massachusetts state court or remove to the federal court for the purpose of staying that damage action so it’d be arbitrated.

But apparently, they chose otherwise.

When the parties choose otherwise, when both of them decide we’d had enough of arbitration, we don’t want it, we want to see what a judge says about this, there’s no reason why, as far as I see it, the federal court shouldn’t take jurisdiction.

Perhaps, if Mr. Justice Frankfurter were here, he might feel otherwise that the court — the court has been ousted of jurisdiction by a very broad arbitration clause.

Again, I’m not here to argue that question.

But I do say this that whatever was the situation at the time the 301 was passed, the situation now is that there are many and varying types of arbitration clauses.

The question of the alleged violation of a no-strike clause may come up in many and very fact patterns and fact situations.

And I say the District Courts are not to be flooded with a case every time the employer files an affidavit saying there has been a violation of the no-strike clause.

And let me say this, here — here’s a perfect example in this very case of how the common law of the shop could’ve been involved in a completely different way.

On page 10 of the contract, there’s another clause which is import — is as important to the employer, it seems to me as the no-strike clause, its clause held cooperation on absenteeism, “The union agrees to cooperate with the company to eliminate excessive absenteeism particularly during a holiday week.”

Now, conceivably, the issue that was presented in this case where only one day was taken off, where there were no tickets, where we had no ulterior demand, mind you that’s an important part of this case, we weren’t striking to gain some benefit, some other change of contract relations.

We had people who stayed home before because they thought they had a right to stay home and because they thought it was an imposition to make them come in.

Now, why wasn’t the union’s obligation completely defined and to be measured by the cooperation on absenteeism clause?

Howard N. Meyer:

Why shouldn’t we be able to come in and try to persuade an arbitrator that what occurred during Christmas week of 1959 was really something which was involved in Clause 11 on “Cooperation on Absenteeism,” and that we had and that we had proved on Christmas Day, the day after Christmas, Saturday, December 26th, by getting 80 people in done or not — oh no, to cooperate in curbing absenteeism.

And that what happened nevertheless was that the resentment of the employees boiled over that a few hotheads in the shop decided “No, we are not going to come in despite the business agents.”

And that was if 26 of them came in and the rest didn’t.

Are we to be held to litigate in a federal court with pleadings and propositions —

William J. Brennan, Jr.:

May I — I understand this, Mr. Meyer, are you telling us that we should treat your notice of motion at page 5 of the record which is only a motion to stay as I read it?

Each refers to Section 301 of New York Civil Practice Act in United States Arbitration Act as actually in effect a counterclaim for some specific performance of the — of the arbitration.

Howard N. Meyer:

That is so stated on page 29 of the record in the moving affidavit.

The union secretary-treasurer states, “I respectfully pray that the court treat this affidavit as a counterclaim for specific performance of an agreement to arbitrate and this as a motion for summary of judgment on such counterclaim if in the Court’s opinion, such is procedurally appropriate.”

And that of course was because of this situation at the time this action arose.

I didn’t know how much further the United States Arbitration Act would be defined in its application to these controversies.

I didn’t know to what extent under the appropriate federal practice, the New York State Civil Practice Act would be applied to these situations or whether 301 would be regarded.

But what’s the difference?

What coat we wear or what suit we wear?

We are here in one posture as a — an entity claiming that we have bargained for our contract, that all disputes or grievances are to be resolved by arbitration and we have been deprived so far by the conduct of our adversary of what judicial redress we bargained for.

Now, there’s another thing I’d like to mention in connection with this whole context and that is the fact that we are a local union.

We’re a local union with autonomy, 3500 members.

To us, the question of whether or not we have to litigate in a federal court with pleadings, motions, depositions, calendar appearance, pre-trials, four days in court as against one appearance before an arbitrator which usually disposes of these things is something very vital which we bargained for.

I won’t say anything about the union’s retainer arrangement with me because it’s not in the record.

But the Court can understand and assume that it is more costly.

Now, a clue to what’s in my adversary’s mind is this.

What he wants and what he seeks to establish, and I think this is in the last sentence of both his reply brief and in the last sentence of the company’s brief in the Sinclair case, what he wants is the sanction of the threat of a lawsuit.

He doesn’t want the sanction of a fair adjudication in a lawsuit as to who is right or who is wrong —

William J. Brennan, Jr.:

Mr. Meyer, ordinarily, am I correct?

At least cases that have come to this Court, it’s the one with a grievance who would gone in under 301 and ask specific performance of an arbitration agreement covering that grievance.

Here, we have a situation in which the company is the one claiming to be aggrieved in the insistence on arbitration under your suggestion treating this as a counterclaim, is that you want that (Voice Overlap) —

Howard N. Meyer:

I want relief before we —

William J. Brennan, Jr.:

That we (Voice Overlap)

Howard N. Meyer:

— the merits of this.

William J. Brennan, Jr.:

Are there other cases involving —

Howard N. Meyer:

Well —

William J. Brennan, Jr.:

— that kind of situation?

Howard N. Meyer:

Usually, the cases are presented in the form or guise of a motion for stay.

That was the situation in Signal-Stat against Local 435 in which this Court denied certiorari.

The interesting and ironic thing about the disposition of this case below is that it was decided by a panel which was different from the panel in Signal-Stat.

William J. Brennan, Jr.:

Well, does anything occur to you that was — there should be a distinction under 301 whether the one invoking specific performance under that is the one aggrieved or the one that gets to whom the contention is being (Voice Overlap).

Howard N. Meyer:

I don’t think either of us have considered or briefed that question.

I think all courts assume that if the scope of the contract, and I think the Yale & Towne which is the most recent and I think the best written case on the subject, all courts have assumed that if when an employer has come to court with his grievance, the other side says, “You should’ve gone to an arbitrator with your grievance.”

That is enough to found federal jurisdiction on for the purposes of 301.

I might mention that one of our outstanding grievances which will be litigated after this case is over, and it’s set forth in the record, is whether or not we can claim damages for them for violating the contract by going to court because that has imposed expenses on the union, which it didn’t have otherwise, and as I say, we bargained for a certain method and scope of adjudicating our controversies.

That’s why I say in this situation and — the Drake case is really a good rock on which this whole artificial trend should found it.

This case, we think, presents a very clear illustration that there are many, many different fact situations and there are many varieties of provocation in a strike situation.

Just take the offense of last week in the steel industry, if the president had not moved so fast and so aggressively, wouldn’t it be conceivable that at many mills, people would stay off the job in resentment at having signed a contract without an increase on the implied representation that there wasn’t going to be a price increase.

They returned to the bargaining table on the president’s request for a non-inflationary agreement.

After that happened, the day after the last contract was signed, there was a price increase or a price increase attempted.

Now, I think most lawyers know, although none have said publicly, that silence, when there is a duty to speak or when one who is silent, implies or permits to be implied from his conduct a statement which is contrary to what his silence is conveying is as guilty of a fraudulent misrepresentation as one who makes a flat misrepresentation and that might have been the situation there.

I see my time is up, I bet the Court has my point.

Earl Warren:

Thank you.