International Ladies’ Garment Workers’ Union, AFL-CIO v. National Labor Relations Board – Oral Argument – April 17, 1961 (Part 1)

Media for International Ladies’ Garment Workers’ Union, AFL-CIO v. National Labor Relations Board

Audio Transcription for Oral Argument – April 17, 1961 (Part 2) in International Ladies’ Garment Workers’ Union, AFL-CIO v. National Labor Relations Board

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Earl Warren:

— International Ladies’ Garment Workers’ Union, Petitioner, versus National Labor Relations Board et al.

Mr. Morris.

Charles J. Morris:

Mr. Chief Justice, may it please the Court.

This case poses a question to the Court as to whether or not, a union and an employer committed an unfair labor practice within the meaning of Section 8 (a) (2) as to the employer in Section 8 (b) (1) (A) as to the union if and when an exclusive recognition contract is entered into absent the existence of a majority.

Such contract was entered into in this case, and this is very much part of the question posed to the Court.

Absent a dual union situation, there was no rival union, absent union security provisions or other forms of coercion either individual incidents of coercion or implicit coercion within the contract itself and also absent a union dominated and controlled by the employer.

Further at issue in this case is that this contract was entered into and was the settlement of a strike which had been in existence for more than a month and further, this contract was entered into when the parties, in good faith, believed that they are in fact existed a majority of the employees who had authorized the union by signing cards as their bargaining representative.

The facts of the case require us to go back to the fall of 1956 at which time the International Ladies’ Garment Workers’ Union was organizing employees of a nonunion rather large manufacturer of ladies cashmere sweaters in San Antonio, Texas.

The organizing was slow, and the record will show that during the period of about 10 months, a little over 100 cards were signed.

And during that period of time, the union increased its strength but something happened, as frequently occurs in labor incidents, which trigger the organizational effort and that was the employer granted a wage decrease to some of his skilled employees and the knitting department of his factory.

This triggered a strike which the union supported and backed.

During the period of — of the strike, which lasted for a little more than a month, the union continued its organizational efforts and more employees signed cards and toward the end of that period, the — the strike began on the 27th of July, 1957, you see, about 10 months after the organizing had started.

Toward the end of that period, toward the end of July, the union representative received a call to come to New York.

He did and took with him two of the employees who brought the cards with him and after five days of very intensive negotiations, this strike, which obviously was difficult of settlement because it was settled at the very toppish lines of the company and the very toppish pf lines of the union.

It was settled at the office and with the assistance of the International President, David Dubinsky and the Vice President of the union.

Potter Stewart:

Mr. Morris, you —

Charles J. Morris:

Yes, sir.

Potter Stewart:

— did the union called the strike?

Charles J. Morris:

The record shows that the strike was in protest of the reduction in wages.

The union as such did not call the strike but supported the strike.

The record does not show —

Potter Stewart:

Does the record show the strike was just a spontaneous proposition?

Charles J. Morris:

The record neither shows that it was spontaneous nor called by the union, Mr. Justice.

Potter Stewart:

You said it was supported by the union.

Charles J. Morris:

It was supported there — it is undisputed that it was supported by the union in — in every respect and continued as part of the union’s organizational campaign.

It was not an organizational strike — strike that.

It was not a strike for recognition, certainly in its inception.

There is a stipulation in the record that the strike was in protest of the reduction in wages.

Now, as of the time toward the end of that strike, and this brings me to the next crucial fact here, toward the end of that strike, in New York, the union representative was getting a running count of the cards which had been signed up and at the point where it appeared, based upon representations made by the employer as to the number of employees in the probable unit, at that point, the union requested recognition.

And one might say that as of them, it was a strike for recognition.

Felix Frankfurter:

But was it assumed that, in fact, they had a majority of the —

Charles J. Morris:

Yes.

Felix Frankfurter:

— employers?

Charles J. Morris:

It — it was not only assumed, Your Honor, but it was found specifically by the trial examiner that both parties acted in good faith in believing that a majority existed at the time.

This was not set aside by the Board or although the Board held this fact to be immaterial whether or not the parties did act in good faith.

Felix Frankfurter:

Is there any suggestion that the guest should be put to a test, the guest as to the numbers who had joined?

Charles J. Morris:

There were — certainly, those suggestions in the briefs filed by the Board in this case, Your Honor —

Felix Frankfurter:

(Voice Overlap) —

Charles J. Morris:

— and the suggestion was made by the Board in its order.

Felix Frankfurter:

Now, was the — was there any talking between the parties negotiating in New York?

Is there any suggestion by the employer that he would like to have it put to the test or willingness on the part of the union that they were ready to put it to a test?

Charles J. Morris:

The union advised the employer that it had a majority based on the numbers shown.

The — the record shows that the employer did not request an examination of those cards.

The finding of the trial examiner, however, which is undisputed and furthermore was not set aside by the Board, was that it — and I’m quoting, “It would have been impractical or impossible to obtain a list of employees at that time because the strike was still in progress.”

Now, I would like to elaborate on that because this will present to Your Honors the picture of what was occurring both in San Antonio and New York at the time.

Felix Frankfurter:

But —

Charles J. Morris:

The strike —

Felix Frankfurter:

— may I —

Charles J. Morris:

Surely.

Felix Frankfurter:

— hold you up for a second.

Was there any indication in the record as to the consequences, the economic consequences of the strike with —

Charles J. Morris:

Yes.

Felix Frankfurter:

— the employer?

Charles J. Morris:

Yes.

There were —

Felix Frankfurter:

And that is what?

Charles J. Morris:

The economic consequences were tremendous.

There were 120 employees who were either on strike or on layoff.

The — it was rather difficult to determine who was actually layoff as a result of no work because of the strike and who was voluntarily on strike, but a substantial number of employees were on layoff status.

In addition, it was pointed out toward the conclusion of the strike that the disruption of production had been so great that the employer requested of the union a waiver as to certain clauses and the ultimate contract as to overtime on weekends and asked permission to work its Knitting Department 24 hours around the clock on a seven-day basis operating on a four-shift basis.

Charles J. Morris:

This was actually done for the purpose of getting production back up to normal.

This is a very large company.

I would call to Your Honors’ attention.

The record doesn’t show the size except by implication and that is it purchased in interstate commerce alone in a single year an excess of $1 million worth of one item, yarn.

It was a very large company and the interstate — the interstate features of it are evident from the fact that it — the settlement had to occur in New York.

The — but to carry on with what I started to say, Your Honor, about the inability of the parties to produce a payroll list, it is impossible to read this record, and it was impossible for the trial examiner and it has been impossible for the various board representatives and the Board itself in writing on this case to determine the exact number of people in the appropriate bargaining unit.

The figure which the Board uses in its brief is a figure from 280 to 368.

This is quite a large spread.

It’s undisputed that as of the time the strike ended and the recognition was granted and a memorandum agreement on the 30th of August, 1957, the union had, in its possession, valid cards, valid in the sense has been employed by the company to the extent of 186.

It was — because they had these 186 cards that the parties were under the impression that they did in fact have a majority as of them.

What the union didn’t know and what the employer didn’t know and what the Labor Board for that matter didn’t know until many, many months later was that of the union’s card, for instance, there were 34 cards as to employees who did not show up on a current payroll.

Now, there’s a serious question as to whether those persons were still employees of the company or not.

Felix Frankfurter:

I don’t understand, Mr. Morris.

Charles J. Morris:

The concept of employee status, Your Honor, is one which has great significance in a union plant where there is a collective bargaining contract which says, “An employee shall remain an employee while on layoff”.

In a nonunion plant, these are concepts which are virtually means all employer does and I personally participated in examining these payroll records.

All this employer did was that he would have a payroll which would show that on a particular day or a particular week, so many employees worked but whether or not Suzy Jones was still an employer or not when she left for maternity leave –leave or whether or not Juan Garcia was still an employee when he had either quit or laid off or take a leave of absence was not important in this kind of factory.

Felix Frankfurter:

Would it be — those are contested or those are dubious issues which you would have to be decided where there’s an election, do they not?

Charles J. Morris:

That is correct.

These are issues, Your Honor, which are responsible in Board cases for taking many, many months to decide.

And the record will show that as of the time of the trial in this case, the employer recognized that there were still four categories in dispute and the undisputed testimony, however, was that prior to that, there were as many as 30 or 40 categories in dispute as to whether —

Felix Frankfurter:

If there had been an election call, would it take months for the — for the elect — for the officials of the election to determine these questions?

Charles J. Morris:

In my experience, Your Honor, if I may draw in my experience, it would have taken months in view of the issues which were posed.

Felix Frankfurter:

I’m not talking about the ultimate determination by the Board if there were a contest but there would be election officials and would this process of determining who is qualified to vote take months?

I’m asking.

Charles J. Morris:

Yes.

Felix Frankfurter:

I don’t know.

I (Voice Overlap) —

Charles J. Morris:

Your Honor, Your Honor, it would have taken months.

For instance, one large category of dispute between the parties, and there was dispute here within the company itself, was whether or not some 25 employees who were hired as replacements in the strike were employees and, hence, would be counted.

It is undisputed and the trial examiner so found that the top official of the company advised the union officials in New York that these were temporary employees and therefore, the trial examiner so found.

Charles J. Morris:

However, the production strike at the manager of the company, the local manager of the company said, “No.

We hired these people as permanent employees.”

This was the kind of thing which could be determined only after detailed investigation which would involve looking at the employment records, interviewing perhaps people, determining whether or not, they were employees.

Felix Frankfurter:

Can you give me these figures, looking at the — looking at the problem retrospectively?

Is there a rock-bottom agreement as to the number of persons, number of employee, number one, number of employees who had been member — had joined the union as the union claim?

Number two, what is the agreed minimum of the bargaining unit?

Charles J. Morris:

As to your number one, Mr. Justice Frankfurter, I can answer, yes.

As a result of lengthy investigation outside the record, and this is noted incidentally by the trial examiner in this case, he commended the attorneys for spending so much time outside the record so that the record could be shortened.

And looking at this voluminous record, we came to the conclusion that there were 158 cards on the crucial date which means that 28 cards had to be excluded, and these 28 cards were valid in every respect that — except that I, who personally try the case on behalf of the union, was satisfied after I talked to the appropriate people and look at the appropriate records that these persons were no longer employees of the company, and therefore, I so stipulate it.

But on the other hand, the General Counsel stipulated with me as to a total of 12 cards including eight cards that had been signed before the strike started or during the strike.

Charles E. Whittaker:

Mr. Morris.

Charles J. Morris:

Yes.

Charles E. Whittaker:

Am I correct in understanding from the Board’s opinion on this question of numbers that there were 286 persons actually working in the unit on the crucial date, August 30, 1957?

Charles J. Morris:

Either 280 or 286, Your Honor.

Charles E. Whittaker:

That there were 120 persons belonging to the unit who were laid-off.

Charles J. Morris:

That is not correct, Your Honor.

Charles E. Whittaker:

And is — that is wrong.

Charles J. Morris:

That is wrong.

Charles E. Whittaker:

Isn’t that the finding the Board has made?

Charles J. Morris:

The Board assumes that they were on layoff.

The record only shows —

Charles E. Whittaker:

If that were true, that would be 406, wouldn’t it?

Charles J. Morris:

That is correct, I believe.

Charles E. Whittaker:

Alright.

Now, then, the union presented 158 cards in — at New York (Voice Overlap) —

Charles J. Morris:

186.

Charles E. Whittaker:

And of those 88 that developed were persons on the laid-off list, isn’t that true?

Charles J. Morris:

Laid off or on strike.

Charles E. Whittaker:

Well, the Board then finds that you had 70 out of the total of 400 — 285 — 286 workers.

Charles J. Morris:

What the Board’s brief fails to note, Your Honor, is that there was a stipulation in the record that 158 people who signed these cards were employees, were employees.

Charles J. Morris:

There is no such stipulation nor is there any crew passed to the others who were not currently working for the company.

This is in the record, Your Honor.

And I — I believe it’s page 60, but I could be wrong on that.

The point that I illustrate is not that we are seeking to contest the Board finding, we are not.

Actually, below we did because the trial examiner had found not just that there was a majority but the General Counsel had failed to sustain his burden of proof in showing the absence of a majority.

He was unable to read the record and find that that burden of proof had been sustained.

We point this out, Your Honor, not for the purpose of going behind the Board finding to the effect that there was not a majority.

We concede that for purposes of this case but we point this out as being a crucial factor to show the existence of good faith that the parties had because of the complexities which existed at the time.

Felix Frankfurter:

Good faith directed toward what?

That you assume you had a majority?

Charles J. Morris:

We assume to base on the evidence that we had, that we had in majority.

The employer was interested in settling his strike, took us at our work presumably that we had valid cards, and the cards incidentally were valid in the sense they — that they had all been signed by employees.

There was never any question as to the authenticity of those cards.

John M. Harlan II:

The Board —

Felix Frankfurter:

The reason that —

John M. Harlan II:

— order and — excuse me.

Felix Frankfurter:

The reason I asked you about the potential consequences, when you deal with a problem like that to be sure what the motive or what the driving force of the employer was is to sheer speculation, so far as I’m concerned.

Good faith doesn’t mean much.

Of course, he was good faith, he wanted to settle the strike on — on terms that are not obviously, he and his or — or improper from his point of view.

There’s good faith.

Is that very relevant to this problem?

Charles J. Morris:

We submit, Your Honor, that this case can be decided in either of two ways aside from the remedy portions of it.

One, that if there was a technical unfair labor practice, the unfair labor practice should not have been found based on the absence of a majority if the party is in good faith and felt there was a majority.

Secondly, we pointed out that regardless of the existence of good faith, and this is a feature which will be discussed more in detail by my co-counsel, Mr. Glushien.

Regardless of that, the Act does not require, does not require nor make it an unfair labor practice by the parties to sign a contract with a minority union.

And the authorities are cited in great detail in our brief to that effect.

Charles E. Whittaker:

If I understand you (Inaudible) —

John M. Harlan II:

I just want to inquire that the order — Board’s order run against both the company and the union?

Charles J. Morris:

The Board’s order ran both against the company and the union and declared that contract of August the 30th to be null and void.

There was a second contract which I feel should be before Your Honors as part of the —

John M. Harlan II:

I mean —

Charles J. Morris:

— presentation of facts.

John M. Harlan II:

— the company isn’t up here though.

Charles J. Morris:

The company has not been in any of these proceedings, including the Labor Board proceeding Your Honor, except to file an answer in the Court of Appeals and an answer to the Labor Board.

It made no presentation.

In fact, and I think this certainly supports the fact that this is very much an enormous length of transaction, not a sweetheart agreement.

The trial examiner noted in referring to the testimony of the company production manager that his demeanor and testimony was such that it left a hint of suspicion that he was interested in having a finding of coercion so that the contract could be set aside.

William J. Brennan, Jr.:

Well, tell me Mr. Morris, you prevail that leads the order, I gather, against the company outstanding, doesn’t it?

Charles J. Morris:

We are contending, Your Honor, that there was not an 8 (a) (2) in this case as to the — and we call Your Honors’ attention to the fact that we would want you to find that there was not an 8 (a) (2) in this case.

William J. Brennan, Jr.:

But what about — what about this order at page 9 of the record addressed to the company, does that — even if you prevail, does that — this company is not here?

Charles J. Morris:

We have contested that, Your Honor.

William J. Brennan, Jr.:

You contested that even?

Charles J. Morris:

We have contested the entire order here because we have suffered as the result of the abrogation of this contract.

This contract —

William J. Brennan, Jr.:

Well, is the — is the company — are you suggesting that if you should prevail, you should also find that the company is relieved of the restrains against it under the order?

Charles J. Morris:

Yes.

Yes, Your Honor.

We —

Felix Frankfurter:

How can the contract — could the — could the contract be valid as to the employer and invalid as to the employee?

Charles J. Morris:

We — we think not.

Felix Frankfurter:

Alright.

Charles J. Morris:

We think not.

Felix Frankfurter:

I think it’s quite a wonderful contract.

Charles J. Morris:

[Laughs] Your Honor —

Charles E. Whittaker:

Mr. Morris —

Charles J. Morris:

I would like to — excuse me.

Charles E. Whittaker:

— did I understand you correctly to argue that an exclusive bargaining contract may be made by an employer with a minority union that doesn’t represent the majority employees?

Charles J. Morris:

Mr. Glushien will go into that in detail, but I will state our position to you, Your Honor.

Our position on that is that a contract which contained such an exclusive clause as that would not serve as a contract bar to bar an election under Section 9 procedures to determine the majority representative.

And in the event of such procedures, obviously, the exclusive list of a contract falls.

Charles J. Morris:

We point out, however, that there is nothing in the Act to which itself bars that kind of contract.

We point out further that the Board went much beyond knocking out that cause.

The Board said the entire contract falls of itself not just the exclusive feature of it.

Although in their most recent brief, it is possible to draw the conclusion that they are now saying that a members only contract, had these been a members only contract, then it would not have been unlawful or a violation of the Act.

Felix Frankfurter:

Was this a one year or two-year contract?

Charles J. Morris:

A two-year contract, Your Honor.

Felix Frankfurter:

And are you suggesting that the contract is valid, free from any infirmities, perfectly lawfully entered upon for two years, then it’s terminable if it is found that, say, within a year, the — there is a majority of the union?

Charles J. Morris:

Yes, Your Honor.

Felix Frankfurter:

Is that what you’re suggesting?

Charles J. Morris:

What — what I’m suggesting is that —

Felix Frankfurter:

And on what basis do you suggest that?

Charles J. Morris:

On the basis —

Felix Frankfurter:

I don’t understand that.

Charles J. Morris:

— on the basis of long Board history under their contract bar doctrine, Your Honor.

Felix Frankfurter:

I thought a year.

I thought contract had to run through — for a year at least under their — a valid — even though there is a change in the majority, the contract has to — there can’t be a reconsideration for a year, isn’t that right?

Charles J. Morris:

The Board — the Board, Your Honor, has held that a contract which, for instance, contains an unlawful union security clause, will not bar an election.

Felix Frankfurter:

Oh, but you —

Charles J. Morris:

— will not —

Felix Frankfurter:

— said unlawful.

But the starting point of this discussion that this is lawful from your point of view.

Charles J. Morris:

It’s lawful but not protected.

Felix Frankfurter:

(Voice Overlap) to be terminated in six months.

Charles J. Morris:

But not protected, Your Honor.

It is lawful but not protected.

We could not, for instance, require an employer to bargain with the minority representative of the union in violation of Section 8 (a) (5).

This would not be a violation of Section 8 (a) (5).

But we point out that the history, and this was certainly recognized by Judge Fahey who filed a dissent below, who had grown up with the statute.

He recognized that you can have this kind of a minority contract and refuse to find either in 8 (a) (2) or in 8 (a) (1).

Felix Frankfurter:

Well, that’s a different question, but I’m — I’m worrying about the consequences if you do find it a lawful contract and you suggest it can be terminated prematurely i.e. before the term has run — before the term of the contract has run.

Charles J. Morris:

I’m not suggesting, Your Honor, that if the entire contract would be terminated, I think the exclusive feature of it would be terminated on the holding of an election because on the holding of an election in Section 9 would have been invoked by the parties — by the employees.

Felix Frankfurter:

But under this contract, under the contract from which you are contending, the validity for which you are contending, for which you are contending, the union becomes the bargaining agency, does it not?

Charles J. Morris:

That is correct.

Felix Frankfurter:

And therefore, if then you are right that if this is terminated before the year is up, then it couldn’t remain the bargaining unit, is that right too?

Charles J. Morris:

It would not remain the exclusive bargaining agent.

We contend it would remain the bargaining agent for its members, and it would — could become a “members only” contract, that, Your Honor, would be a different question that I think might have to turn on the facts whether the contract was separable as to that clause.

I think I can focus this a little —

Felix Frankfurter:

And suppose — suppose than further to complicate it, I — I just want to see what the consequences are.

I — I have (Inaudible) do on any aspect of this case.

Supposed in the meantime a rival union comes in and the rival union comes out of the majority, the rival unions and the majority unions would have to become the sole bargaining agent, wouldn’t it?

Charles J. Morris:

That is correct.

There is no question in my mind about that at all, Your Honor.

That — this — this in effect would nullify the prior contract.

This happens —

Felix Frankfurter:

Well, that’s the point, it would nullify although —

Charles J. Morris:

Yes.

Felix Frankfurter:

— although we start with a proposition that a valid contract, the contract free from any illegality, any infirmity, any prohibition or proscription of qualification of the Labor Act when entered into is terminated within the year, is that right?

Charles J. Morris:

That’s right.

But this, Your Honor, it depends.

This depends on a discretionary administrative feature of the Act and not upon the Act itself.

The Board has changed its rules from time to time on the contract bar doctrine.

There is nothing, there is nothing there as, Your Honor, recognizing the Brooks case, which requires the majority to be adhered to.

The majority there had seized to exist in the Brooks case.

Felix Frankfurter:

That’s my — that’s the starting point of my thinking on this case.

Charles J. Morris:

That’s right.

Felix Frankfurter:

That a — a minority can continue — must continue for reasons given there, very good reason in industrial relations that you don’t want to have a change within the year.

Charles J. Morris:

That is correct.

Felix Frankfurter:

You say in this situation, you do.

You can’t —

Charles J. Morris:

Well —

Felix Frankfurter:

— have a change within the year.

Charles J. Morris:

Well, perhaps, I should make myself clear here.

And I would refer to the dissent by Fanning, Member Fanning, and that is, if the contract was terminable within a year, it would be terminable by the Board.

And only when the Board decided that this was the best thing to do in terms of stability of industrial relations, balancing on one hand stable industrial relations and freedom of choice on the other.

Felix Frankfurter:

Are you telling me that the Board can terminate within the year although it says it again good industrial relation that shouldn’t be terminated within the year?

Charles J. Morris:

A minor — a minority union only, Your Honor.

I’m saying that.

I’m saying that if the employer is bargaining with a minority representative and 30% of the employees file a decertification petition or let us say the 30% of the employees bring in a rival union and a — an election is held and the rival union wins the election, the employees then have asserted themselves under Section 9 (a), and under Section 8 (a) (5), the employer is then obligated to bargain with that rival union.

Felix Frankfurter:

But I thought the whole — you can correct me, but I thought the whole theory was that it is undesirable from the point of view of peaceful industrial relation to bring into question who is the majority within the year.

Charles J. Morris:

No, Your Honor, I didn’t — I didn’t mean to say that it is —

Felix Frankfurter:

I’m —

Charles J. Morris:

— undesirable.

Felix Frankfurter:

— I’m not saying you suggested that, but I understood that could be the policy —

Charles J. Morris:

That is correct.

Felix Frankfurter:

— the thinking of the Board.

Charles J. Morris:

Assuming, assuming, as in the Brooks case, that the party — that the employees themselves had already asserted themselves to select, as a majority, their representative and therefore, the 12-month period was presumed and the employer was not in the position to contest to that.

Felix Frankfurter:

And what you are saying now is that since here, the contract that came into being wasn’t validated by a majority vote if it’s proven within the year that the majority is against what was lawfully entered into, that’s a different situation?

Charles J. Morris:

I say the Board could —

Felix Frankfurter:

But that bears on — that bears on your whole theory of this case though.

Charles J. Morris:

I say the — the Board could so find.

But if it found, it would be in its discretion there as it applies the contract bar rule.

For instance, the Board will find that for a two-year period now, even absent the existence of a majority, even absent the existence of majority, they will not permit a rival union to come in.But in the third year, they will even though the contract on its face is a valid contract for that third year.

Felix Frankfurter:

Yes, but that the whole point is the gravity of the period during which you do not want to unsettle industrial or that stabilizes industrial relation.

Charles J. Morris:

That’s correct.

Felix Frankfurter:

That’s — as I understand, the doctrine of theory.

Charles J. Morris:

That is correct.

Felix Frankfurter:

That’s the kind of thing I can understand.

But you’re now saying the opposite.

I’m not saying you are saying that.

Charles J. Morris:

I — I think that this is the thing to be weighed in terms of the Board’s discretion under its contract bar doctrine, whether or not, the Board would deem improper to hold an election in the face of such a contract as it does hold elections in the face of some types of contract.

Charles J. Morris:

Let me point out that there was a second contract in this case, Your Honor.

And the second contract was signed on October the — the 10th.

It was signed after the union had secured a complete majority, 63 additional employees had signed as of that time.

Now, the Board contends, and this is all they contend, that the mere existence of an exclusive recognition clause in the first memorandum of agreement that this gave the union a marked advantage and therefore, it vitiated anything that happened beyond that.

The record however shows that the General Counsel did not prove that a single person even knew that the kind of recognition was given was exclusive recognition that people were simply advised that the employer and the union had signed a contract, and this is all the record shows, except, it shows the contrary of the — of the Board’s contention, and that is, of these 63 people who had signed cards in the interim, a number were called as witnesses.

They were available to the Board — to the General Counsel for cross-examination.

And they testified that they understood, and they had been told by the employer that it didn’t make any difference whether they joined the union or didn’t join the union, they would get the same benefits anyway.

So 63 of them joined and 172 of them did not join.

The General Counsel stipulated that had all of those who had been available and were standing there ready in the courtroom, had they been called, they would have testified the same.

They were not cross-examined on the point.

The General Counsel may knew effort to show that any individual, any individual was coerced or restrained as a result of the clause which it says is the defective clause and that is the exclusive recognition.

Now, if the recognition had not been an exclusive recognition, would it have had any different effect?The record does not show it.

Your Honor — Your Honors, one other point I would point out here.

I will not go into detail as to everything we have in our brief on this good faith point except to call attention to the fact that this is a common standard used in business, used with contracts, and we had here a ratification of what occurred.

We submit that under the circumstances of a strike, which needed to be settled, which needed to be settled that it was proper for the parties to settle this with demonstrably improved benefits for the employees.

They didn’t have any holidays before, they got three holidays now.

They got a 5% increase.

They got a health and welfare fund based —

Felix Frankfurter:

Is any of that relevant?

Charles J. Morris:

I think the benefits are relevant, Your Honor.

I won’t go into them in detail.

The fact that the — nobody is aggrieved in this case.

The — nobody sought not to take those benefits.

Nobody, none of the employees sought to go to the Board to seek a decertification to say, “We don’t want to be represented by this union,” instead, what they did, just as principles frequently do in ratifying otherwise unauthorized acts of their agent, what they did, 63 of them affirmed what the union had done on their behalf.

And we submit that this character of designation in itself, a non-protunct or retroactive designation was an affirmation of what had been done on their behalf and an acceptance of the benefits and not a repudiation of the benefits.

It happens in business all of the time, a contract may be a voidable contract.

It may be subject to being set aside by one of the parties.

But if the party who could set it aside accepts the benefits or somehow affirms that contract, ratifies it, refuses to repudiate it, the other party is not in a position in ordinary common law situations to set it aside.

And we think, Your Honors, that here —

Potter Stewart:

Who filed the — who filed the charges in this?

Charles J. Morris:

From individual employees, Your Honor, two or three individual employees.

And they filed their charge — charges based on some incidents really of individual coercion which were thrown out by the trial examiner.

The General Counsel didn’t even bother to take exception.

Potter Stewart:

And that is what did initiate the complaint.

Charles J. Morris:

This initiated it.

This is something —

Felix Frankfurter:

Did these individuals say “We want to forego these benefits”?

Charles J. Morris:

No.

Felix Frankfurter:

They evidently asked some other ground for dissatisfaction, isn’t it?

Charles J. Morris:

Their grounds for dissatisfaction were based on personal things where they felt they were being personally discriminated against.

Felix Frankfurter:

That’s why I’m suggesting that the intrinsic benefit or make ends to the all relations of the contract doesn’t seem to be very relevant?

And the ratification, of course, implies that you have the majority, you have that, there’s no problem.

Charles J. Morris:

We submit, we had ratification, Your Honor, and that this ought to be a proper way to ratify a contract just as a common law and in corporate affairs, other forms of business law.

There can be this ratification.

I close with just this point and then I will turn the argument over to my colleague, Mr. Glushien.

We are well aware of the implication of this decision not just in terms of possible unfair labor practices, Your Honor.

But because this Honorable Court held in the Lincoln Mills case and under Section 301 and one of the sources of the federal substantive law to be applied is a law of the National Labor Relations Act.

And what this Court does here, what this Court does here as to determine whether this contract is void or voidable will have implications in 301 procedures, will have implications as to whether or not this contract which had no strike clause in it, for instance, could have been enforced.

There is, before Your Honors now, a petition for certiorari in a retail clerk’s case involving the Lion Dry Good Company, after a 13-week strike, a strike settlement with the minority union was signed.

Efforts were made under 301 to enforce that.

This is pending on certiorari here on petition for certiorari.

This is raised in our case because if this contract was invalid for all purposes, then it was invalid not alone for unfair labor practice purposes but for purposes of enforcement as to any of the rights conferred upon anyway.

Thank you.

Earl Warren:

Mr. Glushien.

Morris P. Glushien:

May it please the Court.

I think it ought to be added as to the facts emphasized that the contract in this case did not have any union security clause of any kind and therefore, no employees were obligated or required to join the union.

Also that there was no rival union in the picture and finally that there is no possible contention that the union in question here was in anyway a dominated union.

To the contrary, the evidence shows very clearly that this was a genuine arm’s length transaction, and that the employer had been a bitter opponent of the union until the strike and the settlement which ensued.

I think that some of the nutty questions which have been imposed here may perhaps be obviated all together.

If we look at one further factual point, which Mr. Morris has to some degree gone into but which I would like to emphasize a little more.

Morris P. Glushien:

On August the 30th, the strike settlement memorandum was signed.

This appears in the record and it’s just a very short document in which I had in hand and brought and it was provided in that document that within two weeks, counsel would get together and sign a formal agreement.

Now, this — the first document, the August 30th document, contained in very brief and summary form a statement “5% increase for the holidays and the other benefits” and one of the clauses said “exclusive recognition of the production and shipping employee”.

Between August the 30th and October 10th, which is more than the two-weeks counsel had anticipated, they finally got together and signed the formal agreement.

But in that period of some six weeks, I guess, the union continued its organization campaigns.

As Mr. Morris indicated to you, workers knew and were told that it was stipulated in this record that they were under no coercion to join the union at that point.

It was stipulated that they were told they would get the same benefits whether they did or did not join the union and there is a stipulation in the record —

Charles E. Whittaker:

May I ask you please, sir?

Were they also told or does the record show that a contract had been made making the union the exclusive bargaining representative of all employees in the unit?

Morris P. Glushien:

Your Honor, the correct answer to that, I think, is that they were all told that a contract had been signed but not the last part you’re talking about.

Charles E. Whittaker:

I see.

Morris P. Glushien:

And all the employees knew the union and the company had settled the strike by making a contract.

Charles E. Whittaker:

Didn’t say what those times were?

Morris P. Glushien:

No, and I think it’s a pretty fair implication, nobody in the — of the Mexican-Americans they would have known what exclusive matter that they have been told, but the record does not show that they were told anything of a kind.

Now —

Earl Warren:

Was there any protest by the — by any of the other employees before the August 30th agreement?

Morris P. Glushien:

Not at all except, Mr. Justice Warren, I think it’s fair to say that this was a divided plant of a certain large number of workers who had continued to work while the strike is going on.

Earl Warren:

Yes.

Morris P. Glushien:

And a certain large number was going out, but there was no protest shown by this record to answer your specific question.

Now, by August — by October the 10th, there is no dispute, I don’t think the Labor Board claims that the union didn’t have a majority.

The record shows clearly at that point by a stipulation that means, which you will find in the record, that the union, by that time, in this doing, had a clear majority in by all the hindsight and the retroactive research that was later done.

The October —

Earl Warren:

That’s the October date?

Morris P. Glushien:

The October date.

Earl Warren:

Yes.

Morris P. Glushien:

And on October the 10th, when they signed this more elaborate and formal contract which I had in handwriting.

There is also a clause for exclusive recognition with a more — with a similar elaboration of the wage terms and all the other customary collective bargaining terms.

Now, the — I say that the whole case may conceivably be disposed of on the October 10th contract for this simple reason.

If, by that time, the union did have an uncoerced majority, I don’t think it’s a sufficient answer to do what the Board does in its brief to say, “Well, anybody knows, that’s just a tainted fruit of the original August 30th contract.”

That’s how they got their majority.

Morris P. Glushien:

The fact is that the Board in its decision by the way didn’t even discuss the October 10th agreement.

It did, in its order, knock it out, but it didn’t have the slightest word of discussion about the contract, how it came about, whether it was free or unfree.

The Board in its decision, in its brief now says, “Well, you held, the Supreme Court held in the Pennsylvania Greyhound case, back 20 odd years ago, that a union which gets exclusive recognition as a marked advantage over any of it in obtaining the allegiance of the employees.

What the Labor Board does intent, however, is this.

First of all, in the Pennsylvania Greyhound case, you had a completely dominated union, and you had a rival union situation which you don’t have here.

And there was a fight going on.

The real authority, which I think points to the correct result, is the Consolidated Edison case, which this Court decided a few years later and which much more clearly points to the result here.

In the Consolidated Edison case, the Court was cited to Pennsylvania Greyhound, rejected it as an authority and the Consolidated Edison, you find essentially this.

There, the contract on its face, it is true, said that it was a contract for its members.

The — the recognition clause said that.

And to that extent, it’s different from our case.

But the economic terms was stated to apply to everybody in the plan.

The contract there said so.

In that case, the employer was engaged in a rival union — was in the middle of a rival union fight.

He favored this IBEW union, the AFL union over the CIO union.

He engaged in various acts of discrimination.

He engaged in — in conduct which was later found to be an unfair labor practice.

Nevertheless, when the Labor Board issued its order which set aside the IBEW contract, well, I forgot — I should have added one other thing.

The — the testimony in that case showed in the findings were, that although in terms it stated it was a “members only” agreement so far as recognition was concerned, the finding of the Board was that in fact it was an exclusive recognition contract that it had been so applied and so carried on, and the Supreme Court held the Board was wrong in setting aside such an agreement, that this agreement was not the fruit of the unfair labor practices and could not be presumed to be the fruit of the unfair labor practices.

That the 30,000 people in that case who had selected the IBEW had some rights and some right stability of employment relations, and that despite the employer’s unfair labor practices and despite the rival union situation, that contract should stand and not be set aside while the Board took its time in running a long continued election.

Felix Frankfurter:

I think neither Mr. Morris nor you thus far has dealt, at least to my hearing, adequately with the real ground of the court’s opinion below, namely, that no appropriate or relevant steps were taken to find out whether this union did represent a majority of its union.

Mr. Morris has made exclusively clear that many of the members are subject to controversy and it’s time to find out etcetera.

But the burden, the gravamen of the opinion below is that no step was taken at all.

This was just seemed to be a good way of settling the strike.

Morris P. Glushien:

I don’t think that’s a fair statement of what the court below held.

I think the Court —

Felix Frankfurter:

Well, I paraphrased it as —

Morris P. Glushien:

Well, I think the court below —

Felix Frankfurter:

Well, if the court below did say no adequate step was taken, you can’t have good faith unless you find out what it is your good faith is directed towards.

Morris P. Glushien:

Well, I don’t think the court below challenged the finding of good faith as such but did say —

Felix Frankfurter:

But it doesn’t mean anything.

Morris P. Glushien:

Well, the party is in New York.

Felix Frankfurter:

I don’t think if you really mean by good faith, there was no evil motive, why, of course.

Morris P. Glushien:

Now, the —

Felix Frankfurter:

That is irrelevant to the controversy.

Morris P. Glushien:

Mr. Justice Frankfurter, the record does show that Mr. (Inaudible), union’s regional director had a count of the cards and had a count of what the payrolls were, and had — had a running count of the — the — we call it a head count, of the people in the plant and believed on that basis.

Felix Frankfurter:

The regional director, who?

Morris P. Glushien:

The union’s regional director.

Felix Frankfurter:

I’m talking about the employer.

Morris P. Glushien:

I — well, the — the employer —

Felix Frankfurter:

I’m — I’m not — I have no view except what I get from having read the opinion below.

Morris P. Glushien:

Oh, what I —

Felix Frankfurter:

What I’m suggesting to you is that neither Mr. Morris nor you have adequately thus far addressed to yourselves to what I take to be the driving thought of Mr. Justice Burton’s opinion.

Morris P. Glushien:

Well, may I answer it this way.

That the trial examiner believed that good faith meant that they had, from the information at hand at that time, a reasonable and honest belief that there was a majority.

The record does show that Mr. (Inaudible), the union’s regional director, knew the number of people for whom he had cards and knew the company statement of how many people there were in the plant.

And based upon one against the other, he thought that one was more than one half of the total.

And it was on that basis that the company and the union got together and signed the contract.

Now, I — I want to add this, that quite apart from anything else, we think that the word “exclusive” in that agreement had no — in the first memorandum, the August 30th memorandum, had no real effect upon the realities of the employment relations in this plant.

As we read the Board decision originally, although I think the Board brief is now otherwise, we felt the Board decision meant that it was attacking all minority union bargaining that it was improper to have minority union bargaining.

And I would appreciate it if the Court would ask Mr. Manoli what position of the Board really is because in the Board brief now, as we read it, they say the only attack here is upon that clause, the exclusive clause and the only real penalty that will ensue say they chopped out the clause, the Board’s order means nothing more than that — that clause should be chopped out.

I want to come to the order at the tail of my argument, but the Board’s order, may I say at this point, goes way beyond merely knocking out the exclusive clause but terminates the entire contract and leaves the employees without any contractual protection.

We — we go through in our brief in some detail to show that minority union bargaining, certainly, without an exclusive clause, is certainly within the contemplation of the protection of the Act that Congress intended that it exist and that historically, minority union bargaining was perhaps the prevailing kind of bargaining in big industry at least for a number of years following the passage of the Wagner Act.

That in auto and in steel and in rubber and other big industries, it took time before unions were able to secure majorities and during that period, there was a great deal of minority bargaining.

And we also say that it is essential to protect that right to minority union bargaining because otherwise, you may have strikes and considered activities by workers who have not yet secured a majority.

And if they cannot settle their disputes and settle their strikes and be protected against discrimination while they are still a minority, I think we have a very serious en route upon the rights guaranteed in Section 7 of the Act.

We think it is certainly more desirable that employment terms be fixed in a plant by two, three, five or any number of — of employees less than a half with the employer through genuine arm’s length bargaining, then to have the employer do it unilaterally in a way which stated the Wagner repeatedly referred to in his — in the record when the Wagner Act was first passed as the trade name for exploitation.

And therefore, we think that minorities do have the right to fix the terms of the bargain so long as there is no union security clause because the statute does expressly, in Section 8 (a) (3), prohibit a union security clause by a less majority group.

But absent that and absent a rival union situation where the employer is applying this better treatment to one as against the other, and absent a creature of the company kind of union, we think it is perfectly proper to have minority union bargaining.

And while the Board in this case may or may not attack it, we think that in any event, this Court ought to make very clear that this is proper.

John M. Harlan II:

What impact do you think the decision of this Court in the Curtis case as in your position?

Morris P. Glushien:

I think that this Court would have to go beyond — well, may I answer you this way, Mr. Justice Harlan, I think Mr. Justice Brennan asked before what about the order against the company?

Doesn’t that order stand up in any event?

It has long been held since Consolidated Edison that a union which is not a main defendant, so to speak, or respondent, still has a right to come in when a charge is filed or complained or issued against the company involving the union’s rights under a contract and defend independently because its rights, if sustained, are — would result in the dismissal of the complaint against the company.

And I think our position here to make it amply clear is that the entire order ought to be vacated and that so far as the complaint against the company under 8 (a) (2) is concerned, that too has to be reversed to make our position meaningful.

Now, Mr. Justice Harlan, to answer your question, I think to the extent that — so far — if our only relief here were — would be to just vacate the 8 (b) (1) (A) order against the union but to leave — extent order against the company, I think we’ve gotten a pure victory and a rather empty one.

Now, we do think —

John M. Harlan II:

I didn’t have any such thing as that in my mind at all.

Curtis held that the union could picket and or peacefully picket to get recognition and my question is if it can peacefully picket, why can’t it agree to be with you?

Morris P. Glushien:

I was going to come to your — to your claim.

I’m sorry, I didn’t complete my answer.

We think that the meaning of Curtis is that not only is it entitled a picket but is entitled without violating 8 (b) (1) (A), and in our brief we developed it, to obtain a recognition for which it is picketing.

But the —

John M. Harlan II:

You can try to get recognition under Curtis.

Morris P. Glushien:

Correct.

John M. Harlan II:

And now the other position would be that the successful in getting this to recognition is something bad, that’s what I’m wondering.

Morris P. Glushien:

Well, that is what the Board is contending.

And we don’t think that that is correct.

John M. Harlan II:

Well —

Felix Frankfurter:

We follow that because you have a right to picket, that the other provisions of the Act, if there’d be other provisions of the Act, can we just regard it?

The right to picket means the right to picket and by picketing get a majority but it doesn’t mean the right to picket and not have a majority and become the exclusive agency.

Morris P. Glushien:

I don’t —

Felix Frankfurter:

I don’t get the logic of that.

Morris P. Glushien:

Well, Mr. Justice Frankfurter, I don’t think it follows that because a right to picket exist that that necessarily means it has — necessarily means it has the right to get the contract, but what I do say is that 8 (b) (1) (A), as interpreted the — by this Court, does not prescribed either the picketing or the obtaining of the agreement, but I come back to the point whether that’s right or wrong.

The heart of the case does not lie in my judgement.

Felix Frankfurter:

Anybody can picket.

It doesn’t have to be an employee of anybody.

An alien — a whole down related union can picket.

Morris P. Glushien:

Correct.

Felix Frankfurter:

So far — so far as the Act goes, can’t it?

Morris P. Glushien:

Correct.

Now, I would like to spend just a few minutes because time is running out.

On the scope of the Board’s order, in this case, the — we contend that the Board has gone much beyond what it should in any event.

As the Board’s brief now seems to say, the only provision that is vulnerable, if anything is vulnerable, is the exclusive recognition clause.

And the Board, instead of merely, in its order, vacating or ordering the vacation of the exclusive clause throughout the entire agreement, now, the contract of October the 10th, if you will look at the record on page 111, contains a separability clause, a standard separability clause.

Even if it didn’t, I don’t think the Board would have had the right to vacate the entire agreement or should have.

The most that should have done was to say that exclusive recognition should no longer be continued.

It should be withdrawn.

The Board doesn’t, in effect, restore the status quo which would have been the strike.

It now holds that the union cannot represent anybody at anytime, not only exclusively, but anybody at any time until and unless it wins an election.

Now, it also says that the — the workers in their brief, they said the workers aren’t prejudiced.

The Board doesn’t order that the workers conditions be withdrawn.

No it doesn’t say that, but it doesn’t require the company to maintain the condition set forth in the agreement.

And in other words, it is now an optional aspect with the company whether it will or won’t continue the gains and the working conditions that were improved.

The company, as you will notice, is not in this Court and has not been below, and I would not be surprised that they would be very happy to let the Board’s order stand exactly as it is.

Now, this Court in the Rockaway News case and in the Consolidated Edison case, we think has laid down the correct rule that the proper thing to do is not to vacate the entire contract but merely to eliminate what may be the illegal part if anything is illegal in which case, we would hear only eliminate the clause for exclusive recognition and leave it as a “members only” agreement.

Felix Frankfurter:

Mr. Glushien, will you —

Morris P. Glushien:

Yes, sir.

Felix Frankfurter:

— please — the proviso —

Morris P. Glushien:

Yes, sir.

Felix Frankfurter:

— the proviso in the — I’m looking at page 9 of the order appeal, provided that nothing, as you had just stated, shall require the company to bear or abandon, and it engaged under the contract, but the last clause or to prejudice gives assertion by employees of any rights they may have thereunder.

Mr. Manoli didn’t tell me what that means but I should aid it if I had to rely on my instant reading of it, I should —

Morris P. Glushien:

I should think that —

Felix Frankfurter:

— (Voice Overlap) that to include their right to insist on what they have.

Morris P. Glushien:

Well, if, Mr. Justice Frankfurter, if the union, the — the contracting party, which made an agreement on their behalf, can enforce the agreement, if — if it’s out as a bargaining agent, I would be very much surprised if any third party beneficiary would be able to enforce any rights under a contract which has been —

Felix Frankfurter:

(Voice Overlap) that I saw — read the clause.

Morris P. Glushien:

Well, I don’t know what the Board means, I don’t see how —

Felix Frankfurter:

You — you yourself said that the exclusive provision can be exercised living the rest.

Morris P. Glushien:

If we are — if we have violated the law.

Felix Frankfurter:

Yes.

Felix Frankfurter:

I understand that.

What I’m saying is that I read the last clause to be precisely that.

Morris P. Glushien:

Well, we — we — picket means otherwise and that —

Felix Frankfurter:

Yes.

Morris P. Glushien:

— there is a lot of laws saying that under a collective agreement, employees as such don’t have any individual rights.

There is a good body of more to that effect.

Felix Frankfurter:

But you are asking this Court to allow a contract which is — which is violative of the Act in — in its key feature to — or in A feature, exclusive feature.

I want to avoid conflict because none of it is in my mind.

You’re asking this Court to do precisely what I read the Board to have done.

Morris P. Glushien:

Well, perhaps —

Felix Frankfurter:

And you say that their contract is, we would say that can’t be done.

Morris P. Glushien:

Well, I would think that the union would be —

Felix Frankfurter:

There are contract cases that can’t be done, we can put aside those contract cases soak in the Board.

Morris P. Glushien:

Oh, maybe so.

Let me just finish up — I want to reserve a few minutes for rebuttal ultimately.

May I finish up by saying this.

That I think the Board, in its brief, has cited a large group of cases to say that exclusive recognition of a minority union is improper.

I think you will find if you look at all of those cases.

That in every instance there has been either a union security agreement, which is expressly prohibited by the Act in the case of a minority union, or a rival union situation or a dominated union.

And that the (Inaudible) case now before you is the very first instance in which it is ultimately held that a genuine arm’s length agreement such as this was without any features of rival union, union security or domination has been offset by the Board in such a case.

I’d like reserve the balance of my time.

Earl Warren:

You may.

William J. Brennan, Jr.:

Mr. Manoli —

Earl Warren:

Mr. Manoli.

William J. Brennan, Jr.:

— before you start your argument, would you telling me what is the Board’s position that the union prevails here in respect to the restraints against the company?

Do you agree that we may set aside the restraints against the company if we find restraints against the union after they set aside?

Dominick L. Manoli:

I believe, Your Honor, that the union is an aggrieved party within the meaning of the statute even with respect to that part of the order that runs against the company.

William J. Brennan, Jr.:

Thank you.

Dominick L. Manoli:

And for that reason, I think that the union here is properly challenging, and the absence of the company itself is properly challenging both the order that runs against the company as well as the order that runs against the union.

Felix Frankfurter:

Before you embarked on your main argument, would you also, in the interest of time, take out this last question — conclusion, what that last laws ought to prejudice the assertions by employee with any right that you may address under —

Dominick L. Manoli:

Well, Your —

Felix Frankfurter:

— what the Board’s construction of that (Inaudible)?

Dominick L. Manoli:

I —

Felix Frankfurter:

Or do you —

Dominick L. Manoli:

I do not —

Felix Frankfurter:

— preferred it — postpone it to be under your argument?

Dominick L. Manoli:

I do — I do not — well, let me say this briefly that I think that that’s merely a sort of a precautionary clause that if they do have any rights under this contract, the Board is not saying that they do have any rights but if they do have any rights, the Board’s order does not — does not bar those rights in the employees.

Felix Frankfurter:

Whether they have right, they have to go to Williston and — and was then, covenant contract and find out?

Dominick L. Manoli:

Well, other considerations may govern that kind of the thing.

Felix Frankfurter:

Alright.

Dominick L. Manoli:

Now, before I turn to the considerations which underlie this controversy, I think I should like to emphasize because despite certain acknowledges that have been made, nevertheless, I think that the two points had been blur if not obscure

.The first is that the Board in this case found that the union did not represent a majority of the employees that were covered by this — this contract.

That finding was affirmed by the court below and despite the fact that the petitioners both in their brief as well as during the course of the oral argument have set up a sort of a variable smokes screen as to why the Board was wrong in making the calculations that it did that they’re showing that it was a minority union, nevertheless, both in this brief and again in this Court, they have acknowledged, and I think this is the critical thing.

They have acknowledged that this question of — of the minority status of this union is not now before this Court for review.

And so the starting point, our starting premises that this union did not represent a majority of the employees at the time that it was recorded exclusive recognition by this company.

And secondly, secondly, in the posture of this case, we are not concerned with the question of whether major — or minority union can enter into a contract for its members only.

Nor are we concerned with the suggestion that’s been made here as well as in — in the briefs of the parties that the minority union may negotiate for all of the employees in their unit as long as there is no explicit recognition of an exclusive representative status.

Now, we think that the distinction is one with without a difference.

But in any event, that is not this case, because in this case, in this case the employer did afford exclusive recognition to this union, and it did negotiate — and this union did negotiate a contract covering all of the employees as their exclusive bargain representative at a time when this union did not represent a majority of those employees.

Now, as Mr. Morris has said, the two principle questions that are presented in this case are first, whether the employers, whether recognition of a minority union has the exclusive representative of all of the employees in the unit whether that constitutes first on the part of the employer interferes and restraint with the exercise of Section 7 rights by the employees, illegal employer support of a labor organization in violation of the statute and second, whether it constitutes on the part of the union the acquisition of this exclusive representative status when it does not represent a majority employees, whether that acquisition on the part of the union constitutes restraint and coercion within the meaning of Section 8 (b) (1) (A) of the statute.

Now, I think the starting point of our analysis in this case here is a word about the collective bargaining mechanism of the statute.

The key feature, the key feature of that mechanism is the majority rule.

That provision, the majority of rule is incorporating the statute by virtue of Section 9 of the Act which provides that only a representative chosen by a majority of the employees and an appropriate bargaining unit may serve as the exclusive bargaining representative of the all of the employees in the unit, both the consenting majority as well as the non-consenting minority.

Under the statute, under the statute, only a majority union, one which has been designated by a majority of the employees, the unit has the plenary authority to speak for both the consenting majority as well as the non-consenting minority.

And under the statute, an employer is obligated to accord exclusive recognition to a — an employee is representative only if, only if that representative has been chosen by a majority of the employees.

Now, the majority rule principle is a common place of our political life, of course.

And Congress, Congress adopted this majority rule principle on this statute in order to import into the arena of industrial relations and measure of democracy such as Barks Aaron political life.

Now, consistent with this philosophy, consistent with this underlying philosophy, we think that Congress could not have contemplated that a minority union, even in the absence of majority representative that a minority union could ever, could ever exercise plenary authority to represent both — all of the employees in a unit both a consenting minority as well as the non-consenting majority.

Indeed, when the majority rule principle was adopted by Congress, there was some concern expressed over the notion of putting even the man consented, minority under their control of the majority, but Congress concluded that the majority rule principle gave assurance of both stability and workability and it adopted this principle.

Now, it seems to us, it seems to us that to say that a minority union representing only minority employees may represent both the majority as well — do not consenting majority as well as the consenting minority, it is simply to stand the majority rule principle on its head.

Dominick L. Manoli:

Now, additional evidence of the congressional understanding that the statute does not permit, that the statute does not permit a minority union to serve as the exclusive representative of employees in a unit.

It is furnished by the 1959 Amendments to the Act.

For some years prior to 1959, proposals have been made in the Senate and Congress to exempt certain industries, among them the construction industry.

To — to exempt certain industries from the majority rule principle because the majority rule principle had been found to be unworkable in those industries because of the casual intermittent employment that obtains in that industry as well as others.

These efforts fail because Congress was unwilling to sacrifice the majority rule principle even under the light of those considerations.

But in 1959, in 1959, Congress passed Section 8 after the statute.

And Section 8 after the statute permits an employer who is engaged primarily in the construction industry to enter into what is called, into what is called pre-hire agreements with the union which either represents none of his employees or a minority of his employees.

Now, the special dispensation which has been thus accorded to the construction industry and the legislative history behind it which we have set forth in our brief, I think evidence, as the congressional understanding, that recognition, exclusive recognition through a minority union is incompatible with the majority rule principle of the statute, and that in order to permit it, in order to permit it a special statutory provision was required.

Now, again, again, further evidence of the congressional understanding of what the majority rule principle in the statute means is to be found in the appropriations to the Board’s, to the Board — to the writers, to the — they found in the writers to the Board’s appropriations from the years 1944 to 1948.

And these appropriations, these writers, the Court will recall, were considered by this Court last term in the Bryan case.

Under those writers, the Board was precluded, was precluded from challenging an agreement between an employer and the union, if that agreement had been in effect, had been in effect for a period of three months or more without a charge having been filed.

Now, in that — those writers, those writers, as this Court noted, as this Court noted in the Bryan case and the opinion my Mr. Justice Harlan that, I’m reading from the opinion, “That that legislation, these writers were enacted with the specific reference to agreement with minority unions.”

And again dropping to the footnote on that page, the Court again noted the debates, the debates concerning the writes, showed that the issue of representation by minority unions was in the forefront, in the forefront of legislative concern.

Now as I say Congress by this — these writers concluded the Board from upsetting a contract even with the minority union which had been in effect for three months without a charge having been far.

Now, if — if, as the other side argues, the statute would — permits, permits an employer to the Court exclusive recognition to minority union, then these writers would have been unnecessary, it seems to us.

Now, here, here, the employer has done quite the reverse of what we think the statute commands.

It has accorded exclusive recognition to a union which has not been designated by a majority union and instead of the non-consenting minority being placed under the consenting majority, the reverse has taken place.

The non-consenting majority has been put under the control of the minority.

Now, we think, we think that such recognition, in the first place, offends the legislative — the statutory prohibition against employer’s support of a labor organization.

Long ago, as it has already been indicated, long ago this Court said that where the employer accords exclusive recognition to a union that recognition gives it a marked advantage, a marked advantage in competing for the support of the employees.

That kind of recognition obviously enhances the prestige of the union, the eyes of the employees.

And we think that in every meaningful sense, in every meaningful sense, it is a kind of support which the statute forbids.

Now, of course, it’s true, it’s true that where you have a majority union, which is recognized that it too derives some kind of support from — from the recognition but the difference between that case and this one here is that in the one case, the majority union, the statute requires the employer to recognize that union but here, here, there is no statutory sanction for the support which a minority union derives from having obtained exclusive recognition.

Now, we also think, we also think that the Board found in this case that an employers recognition of a minority union as an exclusive bargaining representative of all the employees also constitutes an impermissible form of interference with the employees’ rights.

Section 7 of the right guarantees to the employees, among other things, the right to bargain collectively through representatives of their own choosing or to have none at all.

Whether an employer voice upon him a non-consenting majority, a union which they have neither — may have neither wanted nor designated, nor names him, the exclusive recognition negates and abridges that right to be free, to be free of an unwanted union, to select their own bargaining representative or to have none at all.

Now, it is argued, it is argued that the employer and the union in this case acted in a good faith believe that the union represented a majority of the employees.

Now, as a matter of fact, the record shows, the record shows that the employer accorded recognition to this union as exclusive bargaining representative without proof either being demanded or adduced that the union represented a majority of the employees.

And in fact, the fact is, the fact is that the employer accorded this union exclusive recognition upon the unions on verified claim and as it turned out to be erroneous claim that it represented the majority of the union.

But in any event, in any event, it is our position that the good faith of the party is the good faith believed that this union represented a majority is an irrelevant consideration.

Dominick L. Manoli:

In the first place, the statute does not say that a union which is deemed in good faith to represent a majority of the employees shall be the exclusive bargaining representative.

The statute says that only a union which has the majority — which has been designated by a majority.

Secondly, secondly, the statute does not excuse interference or support because of the good faith of the parties.

What is unlawful, under the statute, is the active support of the active interference and properly so because whatever the impart is good faith may be whether or not he is acting in good faith, in either case, in either case, the right of the employers to be free of an unwanted union, to be free to bargain collectively to a representative of their own choosing, in either case, whatever the employers thinking may be, that right is impaired.

Now, it’s argued that in this case, there was no rival union, there was no union security, there was no union security provision which was incorporated in this contract, and finally that the employer, that the employer did not recognize this union because he favored it.

There are — it is true, it is true that the Board has had a number of cases dealing with — with recognition of minority unions and that the Board in those cases, beginning as early as Volume 4 — Volume 5 rather, back in 1938, of its reports, that the Board has said wherever the issue is directly arisen, that the Board has said that exclusive recognition of a minority union is unlawful.

It is true that in those cases, we’ve had certain factors like rival unions, we’ve had also the factor that there was — that the contract gave the union some kind of union security provision.

But, Your Honor, the Board has never qualified in any of these cases which is cited in our brief and in any of these cases, the Board has never said, has never qualified the statement that recognition of a minority union, when it does not represent a majority, is bad.

These other factors, the fact that there was a rival union in the picture, the fact that the employer may have given the union a union security provision, these were merely factors which underscored, which underscored the violation.

They were not necessary to the violation in the Board’s view.

They were not controlling or decisive, but they did underscore, they did underscore the fact that the employer, in those cases here, had invaded the employees’ rights to be free of an unwanted union.

Felix Frankfurter:

Mr. Manoli —

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

— my question may seem far appeal, can you tell me roughly, how many industrial workers there are in United States?

Totality.

I don’t mean all of the gainfully employed as — employees but industrial.

Dominick L. Manoli:

Oh, I —

Felix Frankfurter:

(Voice Overlap) guess.

Dominick L. Manoli:

Oh, I guess 35 million.

Felix Frankfurter:

35 million.

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

What is the most liberal estimate that union membership including all union membership.

Dominick L. Manoli:

The last time I saw a figure, Your Honor, was 15 million, but this was some years back.

Felix Frankfurter:

I don’t mean the AFL-CIO.

Dominick L. Manoli:

Yes I —

Felix Frankfurter:

I mean the (Voice Overlap) —

Dominick L. Manoli:

I understand.

The last figure that I saw, which is some years ago, I have not seen a current, one was about 15 million.

I’m quite sure that figure may be a little bit higher today.

Felix Frankfurter:

That means something like 20 million, they’re not associated — affiliated with any union.

Dominick L. Manoli:

Something like that perhaps.

I — I’m just recalling these figures from the top of my head, Your Honor.

[Laughter]

Felix Frankfurter:

(Voice Overlap) your — your figures or questions in your mind may be out of mind.

William O. Douglas:

I’m — I’m surprised that you say that you think that the 15 million figure would be higher.

I — I assumed it would be lower in view of the impact of automation.

I don’t know.

Dominick L. Manoli:

I don’t have any current figures, Your Honor, but since the last time I had a case and look into for some years ago is about 15 million.

It may have gone up or lower but I think it somewhere on that neighborhood.

As the astronomers say it would take a million less from what occurred.

[Laughs]

The — well, as I was saying that in these other cases, we do have a situation where there are other — these other factors of rival unions, union security but those have merely been aggravating factors, they’ve not been controlling under the decision.

And as a matter of fact, as a matter of fact, it has been said here that there is no case in which the Board has held that — that absent rival unions or union security of the Board has held that a recognition of a minority union as exclusive representative was bad.

But this was the heart, this was the heart of the Board’s position in the Curtis case.

In the Curtis case, there was no rival union and neither was there — then the union wasn’t — obviously didn’t get a contract.

The union wasn’t — didn’t have a union security provision and went on that.

And as I say the heart of that case, the Board’s holding, the Board’s holding at the picketing was bad.

Of course, this Court reversed the Board on that point.

But the basis of the Board’s decision was that the union in demanding exclusive recognition when it did not represent a majority of the employees that that was bad.

The — the exclusive recognition would be bad.

Now, this brings me, I think, to the second leg of this case and that is, whether the union’s acquisition of exclusive recognition of this case constituted interference or not interference, constituted restraint or coercion within the meaning of Section 8 (b) (1) (A) of the statute.

Now, if —

Hugo L. Black:

8 (b) (1) (A)?

Dominick L. Manoli:

8 (b) (1) (A), yes, sir.

If recognition of such a union by an employer constitutes restraint or coercion on his part, as we say it does, then logically, we see no reason, logically, we see no reason of why it is any less restraint or coercion on the part of the union in violation of Section 8 (b) (1) (A) which is the counterpart at least in language of Section 8 (a) (1).

William J. Brennan, Jr.:

There wasn’t any finding limited to interferences as to the employer, was it?

Dominick L. Manoli:

No, sir, it’s general.

Now, this brings me, of course —

William J. Brennan, Jr.:

Well, may I ask, wasn’t it specifically in line of restraint or coercion?

Dominick L. Manoli:

The Board finds that it’s interference restraint and coercion with rights of the employees.

William J. Brennan, Jr.:

You don’t know which — you don’t know that it was not interference.

Dominick L. Manoli:

I don’t think the Board has singled out the word “interference”, Mr. Brennan.

Now, this brings me to the — to the Court in Curtis case.

We don’t read that case to be dispositive of the issue of this leg and this aspect of a case dealing with the union’s violation of Section 8 (b) (1) (A).

In the Curtis case, we were concerned, we were concerned with the legality of the means used by the union to obtain its objective.

The legality of picketing used by a minority union to obtain exclusive recognition, here, we are concerned with the legality of the object.

Now, the legality of the means and the thrust of the Curtis decision was, that in view of the legislative history of Section 8 (b) (1) (A) and in view of other provisions of the statute that when it — that insofar — that with respect to organizational activity or picketing that Congress did not intend to enlarge the scope of Section 8 (b) (1) (A) to reach this kind of activity except where it was — there was violence for the Court’s language where it was — where the action was tinged with violence.

And the reasons which led Congress to give that narrow — that narrow interpretation of Section 8 (b) (1) (A) was that in the sensitive area of picketing, in the sensitive area of picketing and organizational activity to have given a broader scope, to have given a broader scope to Section 8 (b) (1) (A) would have seriously impaired legitimate, would have seriously impaired peaceful picketing or organizational activity for legitimate objectives.

Now, except for disqualification, the note was repeatedly sounded in Congress that Section 8 (b) (1) (A) was the counterpart of Section 8 (a) (1).

And if, as I have suggested, if we are correct in saying that — that this recognition constitutes restraint or coercion upon the part of the employer, then there is no compelling reason why it is any — why it should not also be held to be restraint or coercion upon the part of the union.

And the considerations, the considerations which — which warned counsel, I believe, Your — Your Honors’ word was, which counsel against an expansive reading of Section 8 (b) (1) (A).

In other — in other words, the impingement upon peaceful activity, which might — which might invade or destroy the right to engage in peaceful picketing for legitimate objectives, those considerations are not applicable here because here, there is no danger, no danger of cutting down upon legitimate — upon peaceful activity for legitimate objectives.

The invasion of the employees’ rights here whether it’s by the employer or by the union, it’s both immediate and direct, and it’s not one which is easily remediable by an election.

Because in any election, this union having already obtained exclusive recognition, enters the list with a marked advantage.

Now, let me say finally a word about the Board’s order.

The Board’s order requires the employer to cease and refrain from according inclusive recognition of this union.

It also requires the union to refrain from acting as exclusive bargaining representative until or unless the union has been designated in a Board election by a majority of the employees as their bargaining representative.

The Board’s order also requires the company to cease giving effect to the October 10th agreement.

Now, there are two attacks made upon this order.

The first is that the Board’s order, insofar as it directs the parties to cease giving effect to the October 10th contract, is unwarranted, because it is asserted.

By that time, the union had obtained a majority, had obtained a majority status.

Now, whether or not the union did in fact obtained majority status by that day, we neither challenge it nor admit it, but whether or not they did, whether or not they did, it must be borne in mind that that majority status was achieved after the union had derived illegal support from the exclusive recognition which a company had accord us to at a time when that union was not entitled to that.

Now, we don’t’ believe that any — we — it’s our view that any majority which the union may have had upon that date cannot be disentangled, cannot be disentangled from that illegal support and that the Board is entitled to say it’s a tainted majority and that until the union has demonstrated in a free, fair and secret election has demonstrated its majority represent — its majority status, it is not entitled to enjoy that contract because to do otherwise, to permit, to permit the union to enjoy this contract would be a tantamount to permitting this union to a wrongdoing, to enjoy the fruits of its own wrongdoing.

Now, the second — the second attack it has made upon the Board’s order is — goes something like this.

That the Board’s order here is too broad insofar as it requires the company to do anything more than to withdraw exclusive recognition from this union, that in all other respects, that contract should be permitted to stand.

I don’t think this is the place to stop to — to determine on whether the majority rule principle can be so easily avoided by simply having a contract that covers the conditions of employment of all the employees, the union as a minority union but by simply omitting the exclusive recognition that this is alright because here, in any event, the contract and the exclusive recognition which this union obtained were inseparable.

They were in length.

The union got this contract because it was purporting to act, because the employer recognized it as the majority — as the exclusive — as inclusive representative.

And in fact, it was not.

And we think that in this situation, in these circumstances, the Board is entitled to wipe the slate clean, to wipe the slate clean of all legally binding contractual commitments.

Hugo L. Black:

May I ask you?

Does that mean that entitled to say that this union cannot represent the numbers that actually had in this contract?

Dominick L. Manoli:

The Board’s order — the Board’s order does not permit this union to — to represent its members until an election is held.

That’s true.

Hugo L. Black:

Until what?

Dominick L. Manoli:

Until an election has been held.

It cannot — under the Board’s order, this union cannot represent even its own members.

Hugo L. Black:

Why not?

Dominick L. Manoli:

And the reason for this, Your Honor, is that even the union’s membership, even the union’s membership is a tainted one because —

Hugo L. Black:

Why — why is it tainted?

Ordered to sign up.

Dominick L. Manoli:

Some of them may have —

Hugo L. Black:

If you should let them represent them, why do they not have the right to choose the representative of their choice insofar as they are concerned?

Dominick L. Manoli:

Some of these people, Your Honor, joined before the illegal support was given to them — given to this union.

Some of them joined after the illegal support, but the Board is entitled to say that because of that legal support, we are in no position to determine how many, that have originally joined this union of their own freewill, have stayed in there because of their own freewill, and we cannot say that those —

Hugo L. Black:

But suppose it was stated that it’s the responsibility of the Board to do that.

What right if you have no majority union?

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

That’s why I’m talking about this argument.

You have no majority but you do have a minority union.

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

And they have claimed more than they should have, and they have apparently avoid, we would say, provision in their contract, why does that authorize the Board to say that the members cannot be represented by that union to the extent that they represented them illegally?

Dominick L. Manoli:

Because the union has derived some benefits support from the exclusive recognition to which he was not entitled.

Hugo L. Black:

It will derive, do you not, it will derive it on my assumption after it was the minority, has been representing a minority of the group.

Dominick L. Manoli:

Yes, Your Honor.

And it may well be, it may well be that those people stayed in that union only because this union got —

Hugo L. Black:

It may well be but it may well be that they’re stating that for the reason they went in.

Dominick L. Manoli:

Well —

Hugo L. Black:

Does the Board have the right to punish the union for having quite numbered or having claimed more than they were entitled to get on the contract?

Dominick L. Manoli:

But because there is this great danger, Your Honor that these people may have remained in the union because the union got this illegal support.

Hugo L. Black:

That would require some movement on somebody’s part, wouldn’t it, rather than putting initials on them?

Dominick L. Manoli:

Sometimes.

Hugo L. Black:

What right does the Board has if nobody has complained of, and no member of the union complained about it?

Dominick L. Manoli:

I think they —

Hugo L. Black:

If they paid their dues and they wanted to belong and they wanted to be represented by this minority union.

Why — why does that one clause in the contract invalidates the whole thing so that the Board can say, “You can’t do anything at all.

You people have no representatives?”

Dominick L. Manoli:

Because —

Hugo L. Black:

And you can’t have them unless —

Dominick L. Manoli:

Sorry.

Hugo L. Black:

— we have an election to decide whether or not you’re a majority.

Assuming that if they’re not a majority.

Dominick L. Manoli:

Your Honor, this order of the — the power of the Board to enter this kind of an order was recognized by this Court in United Mine Workers case several terms ago.

And it is the obligation of the Board, it is the obligation of the Board to see that these people choose this union fairly and freely in a secret election in view of the fact, in view of the fact that there is considerable danger that this — that — that even the membership, even the membership of this union is a tainted one by virtue of the illegal support that were obtained from the employer.

Hugo L. Black:

How could you obtain it if you don’t have some findings, some evidence that they coerced them to get in there?

Dominick L. Manoli:

There is no such evidence, Your Honor, but the — the Board is entitled, we think, is entitled to protect these employees in a situation of this kind —

Hugo L. Black:

To protect them.

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

To protect them from the union that they voluntarily joined according to the evidence?

Dominick L. Manoli:

Well, that’s a question of whether they have voluntarily joined it or not.

Hugo L. Black:

But why — why is that question raised?

But you were claiming what the Board found is that they’ve tried to get more than they were entitled during the contract, it isn’t an exclusive representation.

Dominick L. Manoli:

And the Board may infer from that.

The Board my infer from that that many of these employees who originally may have joined the union of their own freewill stayed in it only because the union obtained these benefits and because of that, because of that, we think that the Board can insist that this union cannot represent its members even its members until that membership has been shown by a fair and free election.

Earl Warren:

We’ll recess now.