Mastro Plastics Corporation v. National Labor Relations Board – Oral Argument – October 17, 1955

Media for Mastro Plastics Corporation v. National Labor Relations Board

Audio Transcription for Opinion Announcement – February 27, 1956 in Mastro Plastics Corporation v. National Labor Relations Board

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Earl Warren:

Number 19, Mastro Plastics Corporation et al. versus National Labor Relations Board.

Mr. Fitzpatrick.

You may proceed, Mr. Fitzpatrick.

Bernard H. Fitzpatrick:

If the Court please, this case is here on petition of — for certiorari for the examination of two questions decided in the first instance by the National Labor Relations Board and affirmed on appeal by the Second Circuit.

The two questions will designate, first, the loss of status question that arises under Section 8 (d) of the National Labor Relations Act, which we’ll advert to at more length in a few moments.

The second question which was allowed on the petition for the writ was the contract question, that is, whether the Board properly found that the strike involved in this issue — in this proceeding was not a violation of a no-strike commitment made in a contract by one of the unions involved.

Now, I’m going to make a rather brief truncated statement of the facts because that is all that’s required to raise the strict issues of law here.

However, I may, later on in the argument, advert to certain facts which I do not state at this time not because I think that there are necessary to raise the issues, but because they may throw some light on the reasons why Congress undertook to an Act as brought an Act as it did here.

The petitioner, to get on with the facts, operates a plant in New York City.

In 1949, it entered into a collective bargaining contract with a union, Local 22045, a federal union of the American Federation of Labor which, then, was unquestionably the representative of the employees concerned.

That contract contained a no-strike clause, the language of which we will get to in its appropriate place.

The contract was about half expired when, in August of 1950, a CIO union, Local 65 of the Merchandise Workers, I believe it is, made an organizational attack on the plant and it met with a good deal of success, at least sufficient to enable it to file a petition for recognition for the National Labor Relations Board in the latter part of September.

Meanwhile, the incumbent union, Local 22045, had demanded on about September 7th, some weeks before its 60-day renewal period of its contract approached, an increase of wages in the amount of 12-and-a half cents per hour, and that was all.

The petitioner here was admittedly concerned with the reputation of the assaulting union, Local 65, as being inflicted or infiltrated with Communism, which he opposed.

He proposed, therefore, to the incumbent union that they join together to take steps to combat the rating union, Local 65.

They believed, however, that the incumbent was a bit too weak to cope with the situation and, so, he got in touch with another union, a Local 318 of the Pulp and Sulphite Workers.

And, he sought to induce the incumbent, Local 22045, to turn over the bargaining agency to this Local 318 of the Pulp and Sulphite Workers.

That attempt to induce a voluntary turnover of the agency failed and it is found, and we do not now deny before this Court, that the petitioner, thereupon, committed a series of unfair labor practices which may be summed up as supporting an organizational drive in support of Local 318 of the Pulp and Sulphite Workers.

There was one additional unfair labor practice to which I’ll advert in a moment.

In October of 1950, we have this situation then that the representation proceeding was pending.

The employer supported, and which Board — the Board properly held to be an unfair labor practice, an organizational drive to unseat the bargaining agent.

And, the bargaining agent itself reacted by upping its demands to 25 cents per hour and including a demand for a welfare fund.

At some later point, in the dealings between then and the time of the strike which I’m about to come to, Local 22045 concluded that it itself wished to transfer its bargaining rights to the Carpenters Union, a Local 3127.

The reason why it said it wanted to do that was because the bargaining — because the Carpenters Union was equipped to administer the welfare fund which it had demanded, and it itself was not.

We come down to November 10th, then, with the situation of three, at least, contending interests on the union’s side, Local 65, Local 318, and this hybrid Local 22045-3127.

On November 10th, there was an employee by the name of Ciccone, employed in the machine shop, and he had, unquestionably, been soliciting on behalf of the 22045-3127 combination.

Harold Burton:

You have missed that there were unfair labor practices that’s found by the Board.

Bernard H. Fitzpatrick:

We are in no position to contest that at this level.

Harold Burton:

And, the Board further found that that caused the strike.

Do you agree to that?

Bernard H. Fitzpatrick:

Let me distinguish on your use of the word “caused”.

Harold Burton:

Well, I presume —

Bernard H. Fitzpatrick:

I will admit that the employees struck in response to the unfair labor practices.

That is as far as I will admit to a chain of causation.

Earl Warren:

What did the Court find?

Bernard H. Fitzpatrick:

The Court’s findings paralleled the Board precisely.

Earl Warren:

I beg your pardon?

Bernard H. Fitzpatrick:

They — paralleled the Boards precisely.

Earl Warren:

Well, what did the Board find?

Bernard H. Fitzpatrick:

The Board found that — its terminology was that the unfair labor practice is caused.

Earl Warren:

But if you admit the other findings, why do you say you can’t challenge the other finding on this level?

How could you challenge that finding on this level?

Bernard H. Fitzpatrick:

Well, there is a distinction between the scientific notion, of course, in the sense in which the Board used it.

I — I said that the Board found that strike was caused by the unfair labor practices.

Now, that does not mean, and the Board did not intend to find, that this employer physically ousted these people from the premises wherefore they’re being divorced from their occupation, there was a strike.

Felix Frankfurter:

For your purposes and our purposes, the picture you are making is irrelevant.

Bernard H. Fitzpatrick:

It will not be, I think, Your Honor, as we proceed with the argument.

There is an argument, when I get to the contract phase of this, advanced by my opponent on which I think you will find that it may be quite material.

Felix Frankfurter:

That goes on the question of —

Bernard H. Fitzpatrick:

Well, the Board draws a conclusion —

Felix Frankfurter:

Suppose —

Bernard H. Fitzpatrick:

Let me anticipate it.

The Board — the Board draws a conclusion or, rather, counsel for the Board draws a conclusion which is, I think, supported by the Board’s own opinion of the case, and his conclusion is this.

That you cannot assert, as a defense, your no-strike clause for the reason that the strike was caused by unfair labor practices and you cannot take advantage of your own wrong.

Now, we would say that if “course” were used in the absolute scientific sense by the Board, that that would be valid.

However, intervening between the unfair labor practice, which is the stated cause, and the result which is the strike, you have the voluntary action of the strikers.

They don’t have to strike.

Nobody forced them to strike.

The strike wasn’t caused in the scientific sense.

Earl Warren:

What is the absolute scientific meaning of “cause” in that connection?

Bernard H. Fitzpatrick:

I would say that, in this precise connection, if there were such a connection between the asserted cause and the asserted result that one inevitably flowed from the other, the connection would be scientific, but they are voluntary intervening acts of parties not under the control of the petitioner.

And, I say that when the Board says the strike was caused by the unfair labor practices, we will admit that but only in the sense that the strike action was taken voluntarily in response to the unfair labor practices which were committed.

On November 10th, then, Ciccone is employed in the machine shop.

He is distributing literature or soliciting signatures on behalf of the — let’s call it the incumbent Carpenters Union.

I think for all practical purposes, we may assume that the incumbent and the Carpenters Union were one and the same.

They had the same officers, same offices, and one appeared to be the alter ego of the other.

They have been so treated below.

The president of the petitioner tells him to stop his duties which were of a roving character and confine his activities to the machine shop for the balance of that day.

The president’s — the president of the petitioner was going downtown to a Board of Directors meeting.

At about — that was about noon time.

At somewhere around the hour of 3 o’clock that afternoon, it was reported to the president who had called into the plant over the telephone that Ciccone was out of his department, he ordered Ciccone fired, the rest of the machine shop stopped within 10 minutes after the firing of Ciccone.

Some other departments stropped within, let’s say, a half-hour after that.

The balance of the plant continued working that day, including the night shift which came on later but, the following morning, there was a picket line — I should say, a picket line was established outside that afternoon rather quickly.

And, the following morning, there picket line continued under the auspices of the Carpenters Union, Local 3127 and the plant, for all practical purposes, was down and on a strike.

That was November 11th.

The plant did not resume operation until December 11th.

And, at that time, all who did not return to work, some-70 odd in number who are the dischargees which are the subject of this order, were discharged by the company and they have never been reinstated.

Now, they are the underlying facts.

There were two defenses asserted by petitioner below.

And, the first of these was that the employees involved strikers, which are the subject and the reinstatement order, had lost their status under Section 8 (d) of the Act.

One of the phrases in — in Section 8 (d) is “any employee who strikes” — I’m sorry.

Earl Warren:

Did the employees ever seek reinstatement?

Bernard H. Fitzpatrick:

Oh yes, they made a bid for reinstatement but not until March of the succeeding year.

And, there is no question that none of them — that any of them has ever been reemployed.

The specific portion of the Act involved — reads, “any employee who engages in a strike within the 60-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute for the purposes of Section 8, 9, and 10 of this Act as amended.

But, such loss of status for such employee shall terminate if and when he is reemployed by such employer.”

Now, it is not enough for me merely to read that.

I will summarize what goes before.

That appears in a Section, 8 (d), which is basically designed to define what collective bargaining is, and it gives, in the forepart of the section, a generic definition of collective bargaining.

And, in the latter part of the section under a proviso clause, it gives a definition of what collective bargaining consists of where there is in existence a contract.

Bernard H. Fitzpatrick:

Roughly, that runs, provided that where there is, in effect, a collective bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification takes several steps.

Among which, are notifies the other party to the contract that it desires the termination 60-days prior to the termination desired, notifies the mediation service 30 days thereafter of the continued existence of a labor dispute, offers to meet and confer with the other party on the terms of the renewal.

And, finally, continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of 60 days after such notice as — is given or until the expiration of such contract, whichever occurs later.

Now, then, with some intervening matter of no immediate consequence, we find the loss-of-status clause, which goes on as I read before, “any employee who engages in a strike within the 60-day period, and specified in this subsection, shall lose his status as an employee of the employer engaged in the particular labor dispute for the purposes of Section 8, 9, and 10 of the Act.”

Now, that defense was asserted below, that is, we said these employees struck within that 60-day period.

A notice of termination had been served on October 10th, 1950.

That would have made a 60-day period extending from October 10th to December 10th.

The strike here occurred on the 10th of November and continued thereafter.

We said, therefore, these employees have lost status.

The Board has no jurisdiction to enter the order which it has entered here because none of the subjects of that order are employees within the meaning of the Act, having lost that status.

Now, the treatment of our objection and defense by the Board was this, and I must admit that I can’t quite say what the scope of the decisions below is.

The Board says, “well, Congresses” —

Earl Warren:

Before you get — before you get to that, may I ask, under your interpretation of this Section that you’ve just read, 8 — 8 (4)(d), is there any penalty on the employer comparable to the loss-of-status that — that runs to the employee in the event he breaches his contract during that period and leaves the employees in peril?

Bernard H. Fitzpatrick:

There is not.

So, the only sanction on the employer in these premises is the entry against him of an unfair labor practice order.

That is a cease and desist order which may, of course, incorporate reinstatement of back-pay.

The employer is guilty of an unfair labor practice.

Now, the — the union terminating a contract in disregard of the specified procedures is also guilty of an unfair labor practice, but the terminal sentence of the clause refers not to unions, not to employers, but to individual employees.

It says “any employee.”

I’ll expatiate on the language later on.

Earl Warren:

What happens to the employee who is fired during this period for union activity?

Bernard H. Fitzpatrick:

He loses his remedy before the Board.

That’s —

Earl Warren:

No.

I am talking about the first fellow that was fired.

The one who — whose firing precipitated this —

Bernard H. Fitzpatrick:

He doesn’t —

Earl Warren:

— this strike.

Bernard H. Fitzpatrick:

— participate in the strike.

He forfeits nothing, sir.

Bernard H. Fitzpatrick:

So that, the possibility is that —

Earl Warren:

No, but I mean, what —

Bernard H. Fitzpatrick:

He might have been reinstated.

Earl Warren:

What remedy — what remedy does that man have?

Assume there isn’t — there wasn’t going to be any strike.

Suppose he was just fired for — for union activity during this interim when you say the union is prohibited by the law from striking.

Does he have any remedy?

Bernard H. Fitzpatrick:

Oh yes.

Earl Warren:

What is his —

Bernard H. Fitzpatrick:

Oh yes.

Earl Warren:

What is his —

Bernard H. Fitzpatrick:

He has the full panoply of Board remedies.

He can —

Earl Warren:

What’s his remedy then?

Bernard H. Fitzpatrick:

He can go in and file a charge and procure reinstatement with back-pay.

Earl Warren:

Before the Board?

Bernard H. Fitzpatrick:

Before the Board.

Earl Warren:

How long would that take him normally?

Bernard H. Fitzpatrick:

Mr. Manoli would be a better expert on that than I.

It would not be quite as expeditious.

Let’s say, as an equity remedy, I conceive that.

It has taken months, I will also conceive that.

Earl Warren:

Does it ever take less?

Bernard H. Fitzpatrick:

It has never taken less than months, to my knowledge, except in the case of informal adjustments.

Now, there are a lot of them that go on before the Board, under its ages after the filing of a charge.

There is a considerable degree of adjustments undertaken by the Board.

And, maybe that it is only the cases which warrant a trial which go to trial.

I am not in a statistical position to answer that one.

Let me pick up now.

The treatment of these objections below, I said I was a little bit uncertain as to just how far the Board and/or the court below wanted to go.

Bernard H. Fitzpatrick:

They say that the loss-of-status clause is a part of the section as a whole and, of course, no one can gain to say that.

And, they say the section as a whole is devoted to the problem of termination or modification of a contract.

It specifies the method whereby collective contracts ought to be terminated and modified.

Therefore, the loss-of-status clause, although its language, nobody disputes that its literal language supports the construction of petitioner here, although its language is broad, its intent must be narrowed by the obligations laid upon the parties in the foregoing part of the section.

Therefore, when we have a strike question before us, under the loss-of-status clause, the question becomes, is it a strike to terminate or modify a contract?

Now, I’ve said that I was a little dubious as to whether that was only the holding below or whether the holding was to be narrowed a little bit.

The language used is susceptible of the interpretation that only unfair labor practice strikes are excluded by the Board in — under its rule.

I think the Board, perhaps, was a little bit more clear on that, and I would be inclined to say that what the Board held was that only a strike designed to terminate or modify a contract would be held to be a strike within the purview of the loss-of-status clause.

Now, that leaves a number of strikes which are completely in the neutral ground, for instance, a strike to procure recognition.

Let’s say that there is an incumbent bargaining agent that a foreign union, such as Local 65 in this case, came in but, instead of adopting the feasible procedures of the Board, suppose it said to the employer, “We want you to recognize us.”

And, the employer said, “No, I won’t recognize you.

Look, I’ve got an incumbent union.”

And, Local 65 said, “We’ll strike.”

Well, it might well be that they would be in a position to make that strike effective whether or not they represented the majority.

Under the Board rule, as I read it to my best judgment, the Board would say that such a strike, again, is not within the ambit of the loss-of-status clause.

In other words, the striking employees in that case would work no forfeiture of there remedies upon themselves.

The Second Circuit, I think, was a little bit more cloudy in its construction.

I don’t think it knew quite whether it wanted to hold the position that I’ve just described or whether it merely wanted to see that unfair labor practice strikers were not denied the remedies prescribed for them in the Act by virtue of the loss-of-status clause.

The situation there was that, between the time we had got the Board decision and the time the Circuit Court of Appeals heard our argument in the — on this case, the Eighth Circuit had decided Local 3, United Packing House Workers against NLRB, that was the Wilson & Company case.

And, the Board had predicated much of its opinion in our case on the Wilson case.

But, by the time we got in the Circuit Court of Appeals, the Eighth Circuit had reversed the Board on the Wilson doctrine.

And, that left the Second Circuit rather hanging in midair.

And, so, it finally came to the conclusion that perhaps there is a distinction between the Local 3 case and this one lying in the fact that, here, we have unfair labor practices antecedent to the strike, and in the Local 3 case there were no such antecedent unfair labor practices.

Now, let me argue the point.

I’ve already adverted to the observation that there is really no fact question underlying the defense.

Everybody concedes that the strike occurred within the prohibited time.

Everybody concede that none of these employees has been reemployed so as to restore his rights, nor is there any question that, if the words of the loss-of-status clause be given their literal meaning, the defense should be upheld.

The question relates solely to whether is — whether the literal meaning is the meaning to be adopted or whether that meaning is to be modified by something else in the section or in the Act.

Now, let me call the Court’s attention to the language of Congress that we are going to look at.

Any employees starts off with, “any” is a term of universality.

Bernard H. Fitzpatrick:

It is put there to broaden deliberately the ambit of employees to whom this is to apply, “any employee.”

Now, you’ll notice later in the wording, any employee who engages in a strike within the 60-day period, and so forth, shall lose his status as an employee of the employer engaged in the particular labor dispute.

Now, those words, particularly “of the employer engaged in this particular dispute,” are an aversion by Congress to the basic definition of employer which is contained in two-three of the Act, in which it says the term “employee” shall include any employee and shall not be limited to the employees of a particular employer unless the Act explicitly states otherwise.

Here, the section is explicitly stating otherwise.

And, you will notice that two-three goes on further to include any individual whose work has ceased as a consequence of or in connection with or because of any unfair labor practice, and we seek to draw from that, from the particular aversion to that definition.

This, that the Congress, when it rejected a particular implication of that definition, accepted what remained and what remained was a definition which included an employee whose work had ceased in connection with or as — as a result of an unfair labor practice.

Now, let’s go further into the language here.

Any employee who engages in a strike, take the word, “strike.”

That is a word which has a statutory definition.

Section 501 of the Labor Management Relations Act which amended the Wagner Act contains a specific definition of “strike” which, again, contains the broad term, “any strike.”

Now, not only does it refer to any strike, but that section gives internal evidence of having been drawn precisely with the contract renewal problem in mind for one of the inclusions in that definition is, specifically, the no contract-no work strike which Mr. John L. Lewis made famous several years before the enactment of the Taft-Hartley Act.

That’s further made clear by Section 502 which follows it, which excludes safety strikes as rather narrowly defined.

They define a safety strike as a strike occurring by reason of the immediate presence of danger at the status of the operation.

So that, we know that Congress, when it was dealing with this problem, had fully in mind the problem of whether they wanted to exclude strikes on a qualitative basis or on a temporal basis.

Let’s return again to the provisions of the specific loss-of-status clause.

Any employee who engages in a strike within the 60-day period.

Now, that is clearly a temporal standard of conduct.

There is nothing qualitative about it at all.

It’s measured exclusively as a period of time.

Now, did Congress mean that?

We have some evidence that it did.

The language of the loss-of-status clause came out of the Senate version of the bill, S.1126.

As it originally appeared in that bill, the loss-of-status clause didn’t say within the 60-day period.

It said prior to the expiration of the 60-day period.

That version of the bill obtained through the initial report and through its inclusion by the Senate in the bill which went to Conference, and it was changed only by the Conference Committee.

Now, we have further evidence along the same line.

Every reference to this in the commissioner — in the committee reports, and there are only two of them, I have collated them in an appendix to the reply brief, refers exclusively to a temporal basis.

There is no suggestion anywhere that a qualitative measure of conduct was intended by Congress, all quantitative temporal, within the 60-day period.

Now, at this point, you’d have to assume, if you wanted to follow the Board construction, that Congress made at least three independent language errors.

Now, the assumption that Congress made three independent language errors in a very short sentence is rather farfetched.

Bernard H. Fitzpatrick:

And, I think if we will examine this section further, we’ll see that Congress was not erring at all, but Congress was dealing with a separate facet of the renegotiation problem.

Let’s go on with the wording, any employee who engages on a strike within the 60-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute for the purposes of Sections 8, 9, and 10 of this Act.

Now, Your Honors will notice that there is no condemnation of the conduct of the person who strikes within this 60-day period.

This loss-of-status clause does not say that a strike within the 60-day period is unlawful.

It doesn’t attempt to characterize the conduct to say that, just because you strike within the 60-day period, you are committing a misdemeanor or some sort rather or you are — you are committing conduct which should be punished.

It doesn’t say anything of that sort.

It deals solely with the status of the employee under the remedial sections of the Act, those are Sections 8, 9, and 10.

It says, nothing whatever about his status under Section 7 of the Act, which is the substantive section giving him the right to organize and bargain collectively and to engage in other concerted activities.

It leaves that section — his rights under that Section complete.

Of course, a certain number of men, to a certain degree — to a certain extent and to a certain degree, they are unenforceable because the remedial Sections 8, 9, and 10 are being denied to him by this Section.

Now, what is the significance of that selective language?

Let’s take Section 9.

He’s barred from his rights under Section 9.

That means that he can’t be a protagonist in a representation proceeding brought before the Board.

He can’t be a voter in its elections.

He can’t be a respond — a party respondent to a proceeding bought — brought by another.

He’s completely divorced from a representation proceeding.

It’s the literal language of this before us.

Now, why should that be so?

Unless Congress had contemplated that organizational difficulties, representation questions, might be pending at or about the time of contract renewal.

Congress knew that very well.

Congress, in enacting this situation or enacting this whole section allowing 60 days for renegotiation, was quite cognizant of the contract bar doctrine of the Board which permitted questions from being — representation questions from being raised until pretty near the 60th day prior to the expiration of a contract.

It knew that representation proceedings would be pending during, rather, in a certain number of the cases which would fall under this section of the Act.

Therefore, we may infer that Congress had in mind denying a striker who went out on a recognition strike, a status in the type of proceeding which a recognition — which a representation proceeding would be designed to circumvent.

All right, that’s Section 9.

Now, they bar him also from Section 8.

Section 8 is the section which defines what an unfair labor practice is.

Under the old Wagner Act, it was unilateral in finding the employer only.

Today, it’s bilateral.

Why does the Congress bar an employee from access to Section 8?

Bernard H. Fitzpatrick:

Unless it presupposes that he has been the victim of an unfair labor practice or that he will be the victim of an unfair labor practice.

The very relief that it denies to it is the relief that he would need when, and only when, he had been ousted from his job, demoted, or been the victim of some other discrimination where he would need the Board to lift him up again and reinstate him in his former place.

Now, of course, we also have Section 10.

Section 10 is the procedural section.

That’s the section under which he goes to the Board, files a charge, the Board issues a complaint, has a hearing, makes a finding, issues, and order.

Now, there is no point to putting in a denial of relief under Section 10, unless the Board was aiming at the unfair labor practice at — at knocking out the employee’s — the strikers’ access for unfair labor practices which had been committed prior to the strike and which were pending undetermined before the man hit the breaks, as the saying goes.

Section 10 appears to have been put there precisely to block the contention that the loss-of-status clause does not apply to antecedent unfair labor practices.

What Congress has done under this section — Your — Your Honors will further notice that the concluding words of the section restore the man’s loss-of-status immediately upon reemployment.

Now, let me equate what Congress has done here to the notion that we have in other fields of law of an election of remedies.

Congress hasn’t said this conduct of striking is wrong.

It merely says “we buy your remedy.”

You have a choice.

You may have a remedy by strike or you may have a remedy by the processes of the Board, but you cannot have both in these circumstances.

If you think that a strike is an efficacious remedy for your problem, you may go ahead and strike.

We don’t condemn your action.

We say not a word about it being unlawful.

We don’t make it an unfair labor practice.

Nobody consents you, but you can’t go to the Board.

You can’t ride the two horses at once.

If your strike interferes with renegotiation, however, and you have — and your strike was the wrong remedy, we will leave you precisely where we found you.

We will not, again, put you in a position to resort to the remedy which you thought was so slow or inefficacious that you disregarded it in favor of a strike.

In other words, you may follow the ways of peace and, if you do, you have your full rights before the Board.

On the other hand, you may disrupt negotiation.

And, that refers not only to the incumbent bargaining union, but to the contesters, to the other unions, to political factions within the incumbent union, to anyone who, for his own designs and for his own purposes, whether or not those designs and purposes accord with those of the incumbent union, loses the remedy.

Earl Warren:

Mr. Fitzpatrick, to take the law in that same spirit that you have — have just annunciated it.

Suppose that the union gave notice to try to get a modification of its contracts.

Suppose, prior to that time, there had been no unfair labor practices on the part of the employer, but suppose he waited until after that notice had been given and, then, did the same things that the Board found he was guilty of here.

What choice would the union have then?

Bernard H. Fitzpatrick:

It would have its choice.

Still it — it would still have its choice between the strike and the Board remedy.

Bernard H. Fitzpatrick:

The —

Earl Warren:

Well —

Bernard H. Fitzpatrick:

— the — your statement — Your Honor’s statement, of course with the facts of this case, the unfair labor practices or the both of them because they brought them in —

Earl Warren:

Well, you mean that —

Bernard H. Fitzpatrick:

— after the service of the notice.

Earl Warren:

— you mean that it must forfeit status if they — if they do strike.

Bernard H. Fitzpatrick:

That’s right.

If they — they have the election to strike or to accept the Board remedy.

Earl Warren:

But I understood you to say that — that, before the Union gave notice, it could either, without subjecting itself to forfeiture of status of employees, strike or it could go to the Board.

Bernard H. Fitzpatrick:

Oh no, sir.

I — you —

Earl Warren:

But I —

Bernard H. Fitzpatrick:

— misunderstood me then.

Earl Warren:

But I understood you to say that, after it had give a notice, it could only do the one.

It could only go to the Board.

Did I misunderstand you?

Bernard H. Fitzpatrick:

Oh I — I see what you mean.

No, you did not misunderstand me.

Before this notice is given, —

Earl Warren:

Yes.

Bernard H. Fitzpatrick:

— an unfair labor practice strike —

Earl Warren:

Yes.

Bernard H. Fitzpatrick:

— may be remedied by the Board.

Earl Warren:

Yes.

Bernard H. Fitzpatrick:

And, it may also exist as a strike.

In other words, —

Earl Warren:

Yes.

Bernard H. Fitzpatrick:

— the Union has the full panoply of war material, shall we say.

Earl Warren:

Yes, it has two lawful choices.

Bernard H. Fitzpatrick:

It has two lawful choices —

Earl Warren:

Yes.

Bernard H. Fitzpatrick:

— prior to the service of the notice.

Earl Warren:

Now, my point is this.

After — after it has given notice of an intention to work for modification or change in its contract in good faith, the employer commences unfair practices acts, such as were found in this case, and which it permitted to continue during this period of two months would divest the Union of all of its membership.

Does it, then, have any lawful choices or must it wait, must it file only with the Board and then wait all the months that are necessary in order get a ruling on unfair practices?

Bernard H. Fitzpatrick:

Well, it — it has — it still has its election.

But, now, its election is conditioned on a forfeiture of its right —

Earl Warren:

Well, I said —

Bernard H. Fitzpatrick:

— to —

Earl Warren:

— two lawful choices, as it had before.

That’s what I was asking.

Bernard H. Fitzpatrick:

Yes — no, its choice now becomes restricted.

Earl Warren:

Does it have a strike —

Bernard H. Fitzpatrick:

It cannot do both.

It may resort to —

Earl Warren:

Yes.

Bernard H. Fitzpatrick:

— only to the Board, if it wishes to resort to the Board.

If it resorts to the strike, it may not thereafter resort to the Board.

Earl Warren:

Does that sound like a fair and equitable interpretation to give, unless you have to?

Bernard H. Fitzpatrick:

Let us — let me make this observation in answer to that.

There is distinct evidence that this is one of two sections of the Taft-Hartley Act which was enacted not for the protection of the employer, nor for the protection of the employee, nor for the protection of the union, but for the protection of the public.

Senator Ball, one of the sponsors of the Act that’s admitted by opposition, as a matter of fact, they originally lean on him, said — identified this as one of two such provisions, the other one being the national emergency provision.

Now, from that view point, what is Congress interested in?

Congress is interested in a smooth renegotiation of contracts.

It’s not taking the narrow view of equity between employer and employee, or between union and employee.

It’s taken the view point that all interfering strikes should be controlled during this period.

Earl Warren:

Well, don’t you think we might divine a little broader purpose of Congress and say the purpose was industrial peace?

Bernard H. Fitzpatrick:

That is so, sir, but this is a specific application of it.

Earl Warren:

Well, do you — do you think it — it means for industrial peace to tie the hands of one party and let the other party do what it — what it wishes to the destruction of the other party?

Does that — does that ultimately result in industrial peace?

Bernard H. Fitzpatrick:

I think — I think that Congress had a bit more confidence in the Board than Your Honor’s question implies.

Earl Warren:

You’re talking about these things were all on a temporal basis and — and there is a — a time factor, is there not, and a very serious one in a — in an employee or — or a union or an employer going before the — the Labor Relations Board for unfair labor practices?

Bernard H. Fitzpatrick:

That is right, sir, but this Court has, only within the last term and I think on two occasions, rather than one, rejected a rather well founded argument that was brought up based upon jurisdiction acquired as a result of the procedural delays of some other body.

If I recall the Garner case, they came up here with one of the judges of the Pennsylvania Court thinking that the Garner brothers had no adequate remedy by reason of the length of time that it took a proceeding to go through the various stages which such a proceeding goes through with the Board which, incidentally, were about the same as they are here, I believe.

This Court, in deciding the Garner case, didn’t even take notice of that objection.

And, I think, rather recently, I don’t recall the case you have.

We objected the argument expressly, as it was presented in another case.

It might have been the Western council, although I’m not quite sure now.

Let me reemphasize, in the minute or two that I have remaining, that what Congress was trying to achieve here was, as Your Honor put it, industrial peace during this renegotiation period which is a critical period.

Now, you do not achieve industrial peace simply by commanding two people to bargain.

You must do more than that.

You must prevent any interfering force which may be applied.

If a third-party, not a party to the contract at all, comes in and says, “We want something else than is being bargained for.

We will strike together,” the actions of that party must be controlled.

How can the parties who are suppose to bargain continue to bargain if the plants about which they are bargaining are on strike for any reason?

Earl Warren:

How can the — how can a union continue to bargain if the employer takes — takes all of his members away from him by Unfair Practices Act while he’s sitting at the table?

Bernard H. Fitzpatrick:

Let me remind —

Earl Warren:

As long —

Bernard H. Fitzpatrick:

— Your Honor that a union, as such, has no rights under this Act.

What Acts — what rights it has under the theory of this Act in its predecessor and of the Railway Labor Act are not the rights of the union but the right of the employee.

Earl Warren:

He has rights as a bargaining agent, doesn’t he?

Bernard H. Fitzpatrick:

They are completely derivative and dependent upon their existence.

Rather, they depend completely upon the will of the individual employee.

Now, the will of the individual employee may quite — may well, it is true, be swayed even by an employer today, strange as that may seem.

But, Congress, in enacting this Act, it seems to me, decided to subordinate certain of the protections and its right apparent on the face of the enactment which it had previously given in order to achieve industrial peace during the critical time of renegotiation.

And, I think that the breath of this language we have before us today completely supports such a purpose on the part of Congress.

I see I’m not going to be able to get to my — rest of my argument.

Earl Warren:

Yes — yes, you have five minutes more.

Bernard H. Fitzpatrick:

Well, I’m not going to be able to cover the — I’d — I’d sooner hold that —

Earl Warren:

No, that — that’s all right.

Earl Warren:

You’re in —

Bernard H. Fitzpatrick:

I can’t —

Earl Warren:

You can certainly —

Bernard H. Fitzpatrick:

— possibly cover the contract points in five minutes.

Earl Warren:

Well, you may do that.

That’s all right.

Mr. Manoli you may proceed.

Dominick L. Manoli:

May it please the Court.

The net of Mr. Fitzpatrick’s argument, seems to me, is — and when I speak of his argument, I’m also including matters attached on in the brief but not in the course of Mr. Fitzpatrick’s oral argument.

The net of his argument, it seems to us, is that the no-strike clause in the collective bargaining contract between the parties and Section 8 (d) of the Act, in effect, licensed the employer to engage in the most serious, the most provocative type of unfair labor practices during the life of the contract or during the so-called waiting period prescribed by Section 8 (d) without risking a lawful strike on the part of the employees to protest that kind of action.

Now, the Board and the two court of appeals which have passed upon this issue, namely, the court below and the Seventh Circuit, have held that neither the no-strike clause nor Section 8 (d) of the Act confer such a license upon the employer.

Before I come to discussing these two questions in this case, I think it is important to an understanding of this case to focus attention upon the setting in which the two questions arise.

I’m not sure if they’ve been — that the setting has been completely covered by Mr. Fitzpatrick’s opening argument.

As Mr. Fitzpatrick said, there was a collective bargaining agreement here between the company, the petitioners, and the collective bargaining representative of the employers which, for purposes of simplicity, I shall call the “carpenters.”

That contract was about to expire sometime late in November and, because it was about to expire, it would make possible a redetermination of the employees’ bargaining representatives.

And, as a matter of fact, because of that possibility, Local 65 had filed a petition with the Board asking, in effect, the Board to hold an election upon the expiration of the contract to the then current contract to re-determine the employer’s choice of bargaining representatives.

The company was strongly opposed to Local 65.

At the same time, it felt that the incumbent union, the Carpenters, could not successfully oppose Local 65.

The company felt, however, that a third union, which I shall call the “paper workers,” could oppose successfully the organizing efforts of Local 65.

And, accordingly, the company concluded to give the Paper Workers assistance in succeeding the Carpenters as the employers bargaining representatives upon the expiration of the contract.

To that end, the employer, as the record demonstrates, engaged in a course of conduct which was designed to coerce the employees to dissert the incumbent union, the Carpenters, and to insure the succession of the Paper Workers as their bargaining representatives upon the expiration of the existing contract.

And, to this end, the company here gave of its time, its money, and its effort assisting the Paper Workers in organizing the employees.

And, indeed, the company went even beyond that because the company worked with employees with economic reprisals if they did not join the favored union and promised those — and promised — and also promised the employees with economic benefits if they did join the union favored by the — by the employer.

When did the unfair labor practices begin with reference to the beginning day of the 60-day period?

Dominick L. Manoli:

Your Honor, the notice to my private contract was given by the union on October 10th, 1950.

The paper workers, begun to organize the employees on October 20th and by October 23rd and, during those three — period of three days, the employer engaged in these unfair labor practices which I have summarized.

During those three days, between October 20 and 23rd, the employer engaged in these unfair labor practices.

And by October 23rd, the employees subjected this type of pressure, as would be expected, joined the favored union.

Now, upon reflection, however, a substantial number — well, when I say joined the union —

Earl Warren:

Mr. Manoli, may I ask.

Dominick L. Manoli:

Sir?

Earl Warren:

When would the — when would the contract then terminated in the Court?

What would determine —

Dominick L. Manoli:

On November 20th.

Earl Warren:

On November 20 —

Dominick L. Manoli:

November 20, that’s right.

Earl Warren:

Pardon me.

Harold Burton:

There is no suggestion that the union were to say that —

Felix Frankfurter:

There is no suggestion that the union would, as the employer stated — I’m not suggesting it makes any difference, but there’s no suggestion that the company used it.

Dominick L. Manoli:

No, nothing.

No, no suggestion —

Felix Frankfurter:

I’m not suggesting it makes a difference.

Dominick L. Manoli:

The evidence indicates, as I have sought to summarize, that the employer assisted the union in trying to organize its employees because it feared that the incumbent union —

Felix Frankfurter:

It wasn’t.

Dominick L. Manoli:

— but not a company union, no, not in — not a company union.

As I tell — I say, a company-assisted union in this —

Felix Frankfurter:

What?

Dominick L. Manoli:

— particular purpose.

The — as I was saying, a majority of employees subjected to these pressures by the employer signed application cards for membership in the Paper Workers Union.

Upon reflection, however, though, a substantial number of these employees revoked this application membership cards and reaffirmed their allegiance to the incumbent union, the Carpenters.

Now, one of the leading opponents of the Paper Workers Union and, by Paper Workers, I mean the union favored by the employer, one of the leading opponents was an employee named Ciccone.

On November 13th, the company climaxed its support of the Paper Workers and its opposition to the incumbent union by discharging Ciccone on a very flimsy pretext but, obviously, because he was opposed to the Paper Workers which Ciccone termed as the boss’ union.

When Ciccone was discharged, his fellow employees in Machine Shop walked out and when representatives of the company threatened other employees with similar reprisals if they failed to join in the favored union, the upshot was that all the employers walked out.

Now, the record is clear and the Board and the court below so found that although the incumbent union had given notice to modify the contract, the record is clear, nevertheless, that the strike, although triggered by Ciccone’s discharge, was caused fundamentally by the employer’s efforts over a period of time to destroy the employee’s choice in the — in the selection of their bargain representatives and to unseat the incumbent collective bar — the incumbent bargaining representative upon the expiration of its contract and to substitute in its place the favored Paper Workers Union.

Now, that brings us, I think, to the fresh old question in this case in which, unfortunately, Mr. Fitzpatrick, because of lack of time, wasn’t able to touch upon but, nevertheless, I do think we have to consider it because it is a threshold question.

If this question should be resolved against the Board, the Court would have no occasion to reach the interpretation of Section 8 (d).

The no-strike clause in this contract is cast in a somewhat comprehensive terms.

It includes — it says, in so many words, that the union shall not engage in any strike or work stoppage.

Nevertheless, we think that, despite the comprehensive language of the clause, it may not fairly be read in isolation.After all, the no-strike clause is part of the bargain which the employer and the union have struck.

And, because it is only part of that bargain, it must be read in the light of the entire bargain which a — which two parties have reached and which they have incorporator in their contract.

Dominick L. Manoli:

Now, obviously, the no-strike commitment which the union gives is a prize or a quid pro quo which is — it is willing to pay in exchange for a contract covering terms and conditions of employment.

In this particular case, the union has obtained a contract establishing the substantive terms and conditions of employment.

And, by the no-strike clause, by the no-strike commitment, it agrees that, during the life of contract, it will not engage in a strike to compel a modification or termination of the agreed terms.

Likewise, this particular contract sets up a grievance and an arbitration procedure.

And, under this grievance and arbitration procedure, the disputes which arise between the parties in the course of their normal relationships under their — under the contract and disputes which arise between the parties with the respect of the meaning or application of the — of the contract, these disputes are to be submitted to the grievance and arbitration procedures established by the contract.

Now, in establishing this procedure, we think that the parties have implicitly agreed that, to the extent that these procedures are available, namely, to the extent that these procedures are available for resolving whatever disputes may arise between the parties respecting their normal relationships under the contract, to that extent, the parties have agreed by virtue of the no-lockout — the no-lockout and no-strike clause, the parties have agreed to refrain from self-help with respect to disputes of that character.

And, by the no-strike clause, the union has, in effect, given a solemn commitment that, with respect to these matters which may be properly referred to the arbitration and grievance procedures and with respect to which the contract has made — has provided an ordinary procedure for the resolution of such disputes, to that extent, the union has agreed to forego the right to strike.

The commitment, I believe, does not go beyond that.

I think, perhaps, that no one had a greater insight in these matters than the late Dean Harry Shulman of Yale University.

As the Court undoubtedly knows, Dean Shulman served as the permanent arbitrator under the fourth contract with United Auto Workers and, in the course of his duties, he had occasion to comment on the scope in the breath of a no-strike clause, and I think it is significant here.

He said, this is quoted at page 30 of our brief, “Now, the whole procedure of a grievance procedure with a terminable step of arbitration is to substitute that method of adjustment for strikes, lockouts, and similar measures of self-help.

The very provision of a grievance procedure, have an umpire whose decisions are final means that there must be no-strikes on matter — on matters within his jurisdiction or for the objective of avoiding the effects of his decision.

Section 1, that refers to the no-strike clause in the fourth contract, Section 1 merely makes that meaning expressed.

That, in substance, Your Honor, is our position on the no-strike clause.

Stanley Reed:

What –what is Section 1 of 8 (d)?

Dominick L. Manoli:

Your Honor, he’s referring the no-strike clause in Section 1 of the fourth contract.

There are additional arguments —

Stanley Reed:

Not —

Dominick L. Manoli:

— which —

Stanley Reed:

— not to the — not to the provision of statute?

Dominick L. Manoli:

No, sir.

No, sir, it refers to the provision of the contract — of the fourth contract.

That — that provision had a no-strike clause.

There are other arguments in connection with the no-strike clause that are made in the briefs or the parties but I think I will not undertake to take the Court’s time in going into the subsidiary arguments at length.

I do — I turn now to what, perhaps, is the more important question in this case and, that is, whether —

Felix Frankfurter:

But if — but if you’re right about this, then we’re going to turn to the more important question.

Dominick L. Manoli:

Oh yes, Your Honor.

Felix Frankfurter:

Why?

Dominick L. Manoli:

If — if the strike is not in violation of the no-strike clause in the contract, the question nevertheless remains whether the strike is in violation of the Section 8 (d).

Felix Frankfurter:

It if they don’t prove that it stated that this — that they do not strike, if their strike is in violation and then you review them.

Dominick L. Manoli:

That’s true.

Is — it is not in violation — it’s not in —

Felix Frankfurter:

The agreement is in making any —

Dominick L. Manoli:

But they may lose their status though, however, if the strike is covered by Section 8 (d) and they have not complied with the particular provisions prescribed by Section 8 (d).

Felix Frankfurter:

Yes.

What provision of 8 (d) would tell us it’s in — I thought the crucial provision which reference to you’ve made is that they must not resort to self-remedy but must go to the Board because they submitted themselves to that by the agreement.

Now, if they hadn’t permitted to further this by that agreement, how are they commended their right to strike?

Dominick L. Manoli:

No, Your Honor.

Let’s assume, for the sake of argument, that the strike — that the contract did not have a no-strikes clause —

Felix Frankfurter:

Yes.

Dominick L. Manoli:

— in this.

If they went out on strike, the strike would not be in breach of any commitment in the contract, and the Sands case in where the — it would not apply.

However, though, there still remains the question whether if such a — a strike of this kind is covered by Section 8 (d), the question remains whether the employees have followed the prescribed procedure.

Felix Frankfurter:

What —

Dominick L. Manoli:

So, you do have to come to the second question even though there’s a — even —

Felix Frankfurter:

I — when I said we don’t come to that, just what provision of 8 (d) would they infringe by such?

Dominick L. Manoli:

Well, we take the position that they don’t infringe any part of it in this particular case, but the argument on the —

Felix Frankfurter:

There is no strike without it.

Dominick L. Manoli:

— the argument on the other side is that —

Felix Frankfurter:

There is no strike without it.

Dominick L. Manoli:

The no-strike — the no-strike is out and, then, they come to Section 8 (d) and they say it does apply to this kind of strike under Section 8 (d) does and, since the employers failed or the union failed to take the appropriate steps since they have failed to wait the proscribed length of time, they will —

Felix Frankfurter:

Not from the time of strike, you mean the 60 days.

Dominick L. Manoli:

Yes.

Felix Frankfurter:

That’s what it is.

Dominick L. Manoli:

That’s right.

Now, Mr. Fitzpatrick’s argument in connection with Section 8 (d), it seems to me, is largely founded upon isolating the last sentence of that section and, upon it — upon the basis of that I — of isolating that last sentence from the rest of the section concluding that, in Section 8 (d), Congress meant to reach any type of strike, whatever its cause, whatever its purpose.

I hardly need to say I — that this is not the way to read the statute.

We must look to the section as a whole.

And, I think that when we look to the section as a whole and bear in mind the legislative purpose which is behind Section 8 (d), that I think it becomes fairly evident that what Congress had in mind when it enacted Section 8 (d) were strikes in support of contract demands during this crucial renegotiation period.

The whole of the section and each of the steps which it prescribes are geared to the collective bargaining process and to renegotiation of contracts.

Dominick L. Manoli:

As part of the collective bargaining obligation which the statute imposes upon both employers and unions alike, it — it provides that whenever a party to a collective bargain agreement desires to terminate or modify it, that party shall take several steps.

And, notice, I — I will not to read this but when Your Honors come to read this particular section, you will notice better than I can convey to you by words how closely all these steps are geared to the collective bargaining process.

One, it requires that the — the party seeking to terminate or modify the contract shall give at least 60-day notice prior to termination of its desire to modify or terminate the contract.

Two, it requires that party to offer to meet with the other party for the purpose of renegotiating a successor — a successor or modified contract.

Three, it requires the parties, in case they arrive at a dispute in the course of their negotiations, it requires them to notify the conciliation services and their — and invoke their assistance.

Fourth, it requires that neither party shall resort to strike or lockup and shall keep the contract in full-force and effect for a period of 60 days following the notice or until the expiration of the contract, whichever is later.

The section further provides that neither party is required to discuss or to agree to any modification of the contract terms prior to the time when the contract, by its own terms, permits a reopening.

And, finally, the section closes with the statement that any employee who engages in a strike, this is important I believe and I’d like to read it, that any employee who engages in a —

Stanley Reed:

What are you reading?

Dominick L. Manoli:

This — the whole of the statute, Your Honor, is at pages —

Stanley Reed:

Before you read it, what page?

Dominick L. Manoli:

Yes, I’m going to — I’m giving it to you in just a second.

Stanley Reed:

Thank you.

Dominick L. Manoli:

The statute is pages 64 to 65 of our brief.

Now, I am reading at the bottom of 65 and going over to 66.

That’s the concluding sentence of action — Section 8 (d) and that reads that “any employee who engages in a strike within the 60-day period specified in this subsection shall lose his status as an employee of the employer engaged in particular labor dispute for the purposes of the Sections 8, 9, and 10 of this Act as amended.

But, such loss of status for such employee shall terminate if and when he is reemployed by such employer.”

Now —

Stanley Reed:

Was there any discussion of this 60-day provision of the no-strike clause in any of the —

Dominick L. Manoli:

Legislative history?

Stanley Reed:

— legislative history?

Dominick L. Manoli:

Yes, Your Honor.

We have set that forth at pages — it was — there was a — at pages — at pages 54 to 56 of our brief.

We have quoted the comments of Senator Taft and also Senator Ball, and we’ve also set forth in the footnotes the statements with respect to these provisions in the Senate — in the Senate and the House Conference Reports.

And, if may, I will come to discussing the legislative history in just a moment.

The — it seems to us that what Congress has done in Section 8 (d) is set up a ordinary procedure for the renegotiation of successor contracts.

Having set up that procedure, Congress, in effect, had said to the parties, “We have set up a procedure whereby you may negotiate your contract differences peacefully at the bargaining table.

You must do — you must give this procedure a chance to succeed.

You must do it for a certain period of time.

If necessary, you must invoke the aid of the Federal and State Mediation Services.

Dominick L. Manoli:

And, during this time, while you are attempting to iron out your contract differences, you must not to attempt to substitute force for persuasion in order to obtain your contract demands.”

Now, that I — view of the section, I think, is supported by the legislative history of the Act.

I’ve already called attention to where we have set it forth in our brief.

During the course of the debates —

Could it be said that the purpose of the Congress in making the Act broad, as your opponents claim, the no-strike provision broad was because of the difficulty in defining the motives for strikes?

Dominick L. Manoli:

Well, Your Honor, it’s true of course that the argument is, as I understand it, that Congress meant to wipeout all kinds of strikes during this critical renegotiation period because strikes of any kind necessarily disrupt the bargaining negotiations.

But, it seems to me, Your Honor, that this argument gives the statute a rather one sided twist and, in the absence of specific language that Congress meant to require such a result, I don’t think we should impute to it, and that is this.

That under the interpretation of which Mr. Fitzpatrick gives to the statute — the statute, it would mean that an employer could engage in the most provocative and most serious types of unfair labor practice which would have the most devastating effect upon the collective bargaining process and, yet, that the union could not defend itself lawfully.

It could not lawfully defend itself against those — that kind of action, but that its the only remedy would be to file charges with the Board.

There’s a further reason —

Felix Frankfurter:

Well, if he does that — if he does that, that’s the remedy becomes, in your construction, delayed.

There’s nothing that can be done here basically.

Dominick L. Manoli:

Well, Your Honor, if the employers can go out on strike, they can successfully attempt to —

Felix Frankfurter:

If they go out on strike and, eventually, be reinstated.

Dominick L. Manoli:

Except that if this section applies, however, and they go out on strike, they automatically lose their status as employees.

Felix Frankfurter:

I understand that, but that —

Dominick L. Manoli:

And it’s only if they have the economic power that they cab compel the employer, even though they’ve lost their status.

Felix Frankfurter:

What I’m suggesting is the only — the only control against the employers doing it is that, eventually, he may have to pay and retake — and take them back.

Dominick L. Manoli:

Yes.

Felix Frankfurter:

Is there something he could do against — against —

Dominick L. Manoli:

That’s right.

The union —

Felix Frankfurter:

— this unfair labor practice?

Dominick L. Manoli:

Well, if the —

Felix Frankfurter:

There’s nothing less you can do against the unfair labor practices if he wants to indulge in them that we couldn’t do without your consent.

So far as immediate remedy goes —

Dominick L. Manoli:

Yes, that — that’s correct, Your Honor.

The union would have to file its charges and obtain its remedies from the Board.

I was going to add that there’s a further reason for not construing this — this section the way that Mr. Fitzpatrick would construe it, and that is this.

Mr. Fitzpatrick, in effect, says what this section permits the union to do is to file charges with the Board and invoke the administrative remedies.

Dominick L. Manoli:

Now, Congress, during 1947 when it was considering amendments to the Wagner Act, considered two amendments, both of which specifically provided that it would be an unfair labor practice for a union to resort to strike action where the administrative remedy was available.

Congress rejected both of those amendments and I think that, in the light of Congress’ action in that respect, we should not read into Section 8 (d) without having clearer language to that effect in this section.

We should not read in that section a provision that, because there is available to the union an administrative remedy against the employer’s unfair labor practices, that it could not go out on strike to protest those unfair labor practices.

Felix Frankfurter:

Is there anything — anything to penalize the employer or lockup the way this penalizes an employee?

Dominick L. Manoli:

The only thing is that if he engages in a lockout, Your Honor —

Felix Frankfurter:

He could bring this situation to pass by a lockout, couldn’t he?

Dominick L. Manoli:

If he engages in a lockout, of course, he would be committing a violation of his — of his obligation to bargain collectively because that’s one of the things that he may not do, consistent with his —

Felix Frankfurter:

Is there any — is there any —

Dominick L. Manoli:

Penalty of —

Felix Frankfurter:

— penalty to discourage them, other than the fact that he can bring it before the Board?

Dominick L. Manoli:

No penalty, no penalty.

Felix Frankfurter:

Now, here, there’s a loss of status —

Dominick L. Manoli:

Right.

Stanley Reed:

The presentations of paying wages when you don’t get the full —

Dominick L. Manoli:

Well, he would, eventually, if he locked out the employees and discriminatorily say, eventually, he would be —

Stanley Reed:

He’ll have to pay.

Dominick L. Manoli:

— have to pay whatever loss of pay.

There is —

Stanley Reed:

Would you pay to settle?

Dominick L. Manoli:

That would be the remedy that the Board would give to the employees, Your Honor, yes, that’s correct.

Stanley Reed:

He just have — unless he’s going on the case, you’re on –on — both the employer and employees have to stay on this subject, rather than the Act.

Dominick L. Manoli:

Right.

That —

Stanley Reed:

Failure of the employees would undertake the applications made.

Dominick L. Manoli:

That’s right.

Now, I think we ought to take a look at the consequences which flow from the company’s reading of this statute.

And, I think that when we do take a look at the consequences which flow from the company’s reading of the statute, it becomes all the more apparent that Congress could not have intended that interpretation and that, certainly, we should not impute that interpretation to Congress in the light of these very strange consequences.

The interpretation which the company imposes upon this section means that if you have a union which is satisfied with its contract, and therefore is given no notice to either terminate or modify as required by this section, and the employer in that situation commits unfair labor practices, then the union may engage in a lawful strike against the employer’s unfair labor practices without the loss of employee status by the employee.

On the other hand, it means that if, as in this case, the union is dissatisfied with its contract and has given notice to modify and terminate it and that the employer then proceeds to engage in unfair labor practices, that the union’s hands, as the Chief Justice said, are tied except by way of filing charges with the Board — with the Board.

It also means that a union which is negotiating its — a contract for the first time is free to engage and is free to strike in protest against the employer’s unfair labor practices.

Dominick L. Manoli:

But, on the other hand, in the situation where a union is — is negotiating a second contract to succeed an existing one that, in that situation, the employer enjoys the extraordinary privilege of engaging in unfair labor practices which is the union cannot protest by way — by way of a strike.

I submit, Your Honor, that these consequences are so in Congress.

That, again, in the absence of explicit language that Congress meant to bring about such — such results, that we should not impute a purpose to do so on the basis of the language which is now contained in Section 8 (d).

I come, finally, to the argument which has been pressed with this bar, and that is that the specification of the loss of status under Sections 8, 9, and — excuse me, under 8, 9, and 10 which is set forth in the concluding sentence of Section 8 (d) clearly establishes that Congress meant to reach unfair labor practice strikers.

Hugo L. Black:

Meant to what?

Stanley Reed:

Meant to reach — meant to bar employees from going out on a strike in protest against unfair labor practice — against the employer’s unfair labor practices.

Now, there are two answers I think to this argument.

First of all, all that the last sentence of Section 8 (d) does is simply proscribe the sanctions which the employees will incur if they go out on strike — they go out on the strike of the kind that Section 8 (d) contemplates.

In other words, Congress is saying, if you go out on the type of strike that we have set forth or described in Section 8 (d), you will lose whatever right you may have had to complain about the employer’s failure to reinstate you as an unfair labor practice under Section 8, you will lose whatever voting rights you may have had under Section 9, and you will lose any — you will lose any right to invoke the processes of the Board under Section 10 for relief.

But, in order to determine, however, what kind of strike Congress had in mind and to what kind of a strike these sanctions apply, we have to look to the rest of this section, as I have indicated.And, when you look to the rest of the section, as I have said, its seems quite evident to us that what Congress had in mind was a strike in support of contract demands during this waiting periods and not strikes to protest the employer’s commission of unfair labor practices, as in this case.

Secondly, there is a simple and, what I believe to be, an adequate explanation for Congress having provided that the employees who went out on a strike of this kind would lose their status under Sections 8, 9, and 10.

Under Board decisions, an employee who engages in a strike misconduct does not necessarily lose his right to read his employee status, vis a vis to a particular employer, or his right to reinstatement.

The Board, in such situations, weigh such factors as employer provocation, the seriousness of misconduct, and other surrounding circumstances.

And, weighing these factors, the Board then comes to the — determination, makes a judgment whether it would or would not effectuate the policies of the statute to require the reinstatement of this particular employee who was engaged in a certain type of strike or misconduct.

The legislative history indicates that Congress, in considering the 1947 amendments, was aware of the Board’s practice in this respect.

And, Section 8 (d), it seems to us, discloses an intention to take away form the Board any power, with respect to Section 8 (d) strikers, to make a determination whether or not the reinstatement of the strikers who had failed to abide by the requirements of Section 8 (d) whether or not their reinstatement would or would not, in the particular circumstances, effectuate the powers of the statute.

Felix Frankfurter:

What — I’m sorry, Mr. Manoli.

Did you say it does not indicate — it indicates an intention not to take that power away?

Stanley Reed:

It indicates an intention to take that power away from the Board with respect to Section 8 (d) strikers.

In other words, Congress, as —

Felix Frankfurter:

It seems it just figured that you lose that case.

Stanley Reed:

Yes.

Congress made that determination itself.

It didn’t leave it to the Board but made that determination itself and said, “now, if you engage in this type of strike, you will automatically — automatically, upon going out on this kind of a strike, you will automatically lose your status as employee for purposes of Sections 8, 9 and 10.”

It has left no —

Felix Frankfurter:

Why is it not —

Stanley Reed:

It has left — I’m sorry.

It has — it has left no room for the Board’s judgment or weighing the factors in this particular situation as the Board may have in another cases involving strike misconduct.

Congress itself, as I say, made the determination and said, “We will put it in the statute, any employee who engages in a strike of this kind that we’ve described in Section 8 (d), we think, is so serious that you should be automatically disqualified,” and —

Earl Warren:

Namely, for economic purposes.

Felix Frankfurter:

For purposes of Sections 8, 9, and 10 insofar as his right to vote is concerned, insofar as his right to reinstatement may be involved, and insofar as he may ask for relief from the Board.

I suggest it doesn’t take very — take me very far from reaching the questions put to you by Mr. Justice Harlan that Congress may also have changed the wording but you know even better than I it’s not always an easy question as to where the gravamen, whether this was an economic strike or was it an unfair labor practice strike.

Those are not easy mathematical questions.

Nobody knows better than you.

Dominick L. Manoli:

That’s true.

Felix Frankfurter:

And Congress may well have been, but it will take the whole thing away and not to leave it for determination before the Board, consolably restricting evidence as to where the blame lies are being entered into the daring territory of the fact that you believe is what decides to be brought.

Now, leave that to him.

Under practical terms, it’s not even determined which is which, is it?

Dominick L. Manoli:

There are times when it would be very difficult but, after all, it’s kind of a problem that comes before the Board everyday determining what is the motive and, so, it seems to me —

Felix Frankfurter:

But Congress may have thought we wouldn’t agree with you and say “we want to encourage you to resort to a strike.”

That’s all this was in the Congress.

This did not — it didn’t arise from the tentative consideration of the case you insisted.

Dominick L. Manoli:

No, but I think, Your Honor, that, in the absence of some specific legislative history that this would — Congress intended to do and the absence of any clear language, to that effect, in the Section itself that even though Congress could have done what Your Honor suggests, nevertheless, we should not impute that purpose to Congress, it seems to me, in view of the results, the very strange results.

Felix Frankfurter:

I’m not including it.

I’m deciding you do this.

Everyone in Congress needs me to decide what I believe is not disclosed before somebody not in comparison to that.

Dominick L. Manoli:

Your Honor, I —

Hugo L. Black:

What’s the history of that language?

Is it the —

Dominick L. Manoli:

Of the last — the last sentence?

Hugo L. Black:

The men in charge, who wrote it?

Dominick L. Manoli:

It was in the Senate, the — the Section 8 (d), Your Honor, originated in the Senate —

Hugo L. Black:

Who wrote it?

Dominick L. Manoli:

— and I don’t know off — I don’t know offhand who wrote — who —

Hugo L. Black:

You got a trial.

Dominick L. Manoli:

Pardon?

Hugo L. Black:

You got a trial.

Dominick L. Manoli:

Well, it was already — that’s right, it came out of the — it was already, Your Honor, —

Felix Frankfurter:

He was —

Dominick L. Manoli:

— it was already in the Senate provision and, then, it went to conference and the conferees agreed to it, and then it was reported out.

Dominick L. Manoli:

But, there is no similar — there is no counterpart to this section in the House proposal.

It —

Felix Frankfurter:

Who proposed it?

Do you know who proposed it in the Senate?

Dominick L. Manoli:

Apparently, my colleague informs me that Taft sponsored the Senate — well, of course, we know that he sponsored the Senate Bill.

Hugo L. Black:

Did he have this particular comment in it when he started?

Dominick L. Manoli:

I think it’s been there from the beginning, Your Honor, with some slight change.

At one time it was introduced with the word “provided that”.

At another time, the section read “where employees go out on strike prior to the expiration of the 60 days” and it, finally, was drafted that “any employee who engages in a strike within the 60-day period.”

But, I believe that those differences are unimportant and there’s no —

Hugo L. Black:

You quoted Senator Ball.

What did he have to do?

Dominick L. Manoli:

Well, Senator Ball, Your Honor, was one of the managers of the amendments in the Senate, and —

Hugo L. Black:

Is this the part of the amendment he wrote?

Dominick L. Manoli:

No, he was simply one of the managers, Your Honor.

Hugo L. Black:

Managers of what?

Dominick L. Manoli:

Of the amendments in the Senate.

Apparently, as I understand that, it was his job to see to it that the amendments were considered and steered to the — to the Senate.

Hugo L. Black:

You mean, he’s a member of the later committee, educating the later committee, is that it?

Dominick L. Manoli:

He was on that — he was on that committee, yes, Your Honor.

He was on that committee.

I cannot answer your question —

Felix Frankfurter:

Mr. Manoli, in the manner of terminology, Mr. Riley is an adviser to the Senate committee —

Dominick L. Manoli:

Oh yes.

Felix Frankfurter:

— or acting as one?

Dominick L. Manoli:

That’s true.

Felix Frankfurter:

That’s a matter of terminology.

Dominick L. Manoli:

Yes, it is.

I — I don’t know which particular Senator took credit, if I may say so, for Section 8 (d).

I don’t know if there is anything in the statute.

Dominick L. Manoli:

I don’t even — right now, I don’t recall who actually offered the amendment on the Floor of the Senate.

Tom C. Clark:

Well, it’s your — it’s your position that, under Section 8 (d), Congress provided that employees may strike for unfair labor practices.

Dominick L. Manoli:

It is our position, Your Honor, that where an employer engages in unfair labor practices, even though the union has given notice to modify or terminate the contract as required by Section 8 (d) that, nevertheless, the employees are free to go out on strike without automatically incurring a loss of their employee status.

Tom C. Clark:

That’s all in the interest of peaceful labor relations.

Dominick L. Manoli:

Well, as I suggested a little while ago, Your Honor, it’s true that the employees going out on strike may disrupt the negotiations, but the employer has already done the harm.

The employer is — the employer is already engaged in these — in these unfair labor practices and the harm to the collective bargaining and to the industrial stability are pieces already been done by the employer.

And, in that —

Tom C. Clark:

Well, they’ve got a remedy before the Board for that, haven’t they?

Dominick L. Manoli:

They do have a remedy, Your Honor.

But, as I suggested a moment ago, the fact that Congress rejected two amendments which specifically provided that any strike would be an unfair labor practice, where an administrative remedy was available, the fact that Congress — that Congress rejected those amendments which specifically so provided suggest to us that we should not read in such a limitation in Section 8 (d), in the absence of —

Tom C. Clark:

And easy enough for Congress to have provided in Section 8 (d) for unfair labor practice strikes only, wouldn’t it?

Dominick L. Manoli:

I — I’m sorry Your Honor, I didn’t get that.

Tom C. Clark:

It would be easy enough for Congress to have provided in Section 8 (d) that they could — they could strike for labor — unfair labor practice violations.

Dominick L. Manoli:

Yes, Your Honor, they could have — they could have said that.

They —

Tom C. Clark:

The — they used a broader term.

Dominick L. Manoli:

But, I think that the reason they were — Your Honor, we must remember, I think, that Congress was thinking in terms of bargaining negotiations.

It wasn’t thinking of an employer committing unfair labor practices.

It was thinking in terms of protecting the negotiations during this crucial 60-day period.

Tom C. Clark:

That’s why they provided there shouldn’t be any strike, isn’t it?

Dominick L. Manoli:

And they provided that the — that the parties should resort to those procedures and not resort to self-help for the purpose of getting the other side to yield to their contract demise.

William O. Douglas:

I know the minority report would suggest it.

Dominick L. Manoli:

Yes, Your Honor.

The minority report on the bill attributed to the bill, the very purpose which Mr. Fitzpatrick is arguing for.

William O. Douglas:

Did they argue it on the Floor?

Dominick L. Manoli:

The only argument on the Floor are the statements that were made by Senator Ball and Senator Taft and — which we have set forth in our brief.

And, Senator — Senator Taft said that Section 8 (d) was only concerned with the collective bargaining process and Senator Ball similarly said that Section 8 (d) was designed to avoid quickie strikes in connection with the collective bargaining process and that it was designed to prescribe the safe, as he put it, the safe and sound and fair procedure that all the — that the majority of responsible or good unions now follow.

Now, I submit, Your Honor, that it’s no part of the safe, sane, fair, and sound procedure that responsible unions follow that, once they have given notice to the employer of a desire to terminate or modify the contract, they have, in effect, given him a license to engage in unfair labor practices without risking a strike — without risking a lawful strike.

Harold Burton:

So, Senator — Murdock —

Dominick L. Manoli:

Now —

Harold Burton:

Was he in the Senate when that bill was passed?

Dominick L. Manoli:

Senator who?

Harold Burton:

Member Murdock, a member of the Board.

Dominick L. Manoli:

No, Your Honor.

The net of the legislative history is it isn’t very illuminating.

Dominick L. Manoli:

Well —

Felix Frankfurter:

Mr. Manoli, was there any reference to this in the President’s veto message?

Dominick L. Manoli:

No, sir.

Coming back to the — the Senate Minority Report that Mr. Justice Clark has referred to, I think the answer, we — we must make to that as the answer which this Court made, speaking to Mr. Justice Frankfurter, in the Schwegmann case that we look to the sponsors, not to the opponents of the legislation, to determine its meaning.

Hugo L. Black:

Well, do you have anything from this point that indicates that it did not mean whether familiar language seems to indicate?

I’ve looked at what you have here?

Dominick L. Manoli:

Well, Your Honor, we have — we have — first of all, we have the language of Senator Taft that I’ve referred to, also the language of Senator Ball.

And, Senator Ball’s language, as one of the conferees, I think, is one of significance because, as I’ve just —

Hugo L. Black:

I — I agree that it is significant but where is the language that indicates, that language that it doesn’t mean what its literal words mean.

Dominick L. Manoli:

Let me say it this way, Your Honor, that I think that if Congress had meant to cut down the employer’s right, which is a fundamental right under the statutes, to engage in a strike in a — in protest against unfair labor practices, that this would not have gone unmentioned in the — in the reports of the majority, on the House Conference Report reporting the bill.

It would have created, it seems to me, such a very important and drastic change in the employer’s fundamental rights under the Act of the Board.

If the majority had so indented, they certainly would have said something.

And, as a matter fact, during the course of the legislative history — of the legislative debate, Senator Taft, and you will discover this, Your Honor, when you come to read the whole of section — of Senator Taft’s statement on Section 8 (d), Senator Taft concluded his explanation of this section by saying — by saying “so, it seems to me that’s — I interpolate Section 8 (d) to be no real limitation of the rights of labor unions.”

Now, I submit, Your Honor, it would have been a very real limitation upon the rights of labor unions if they — their right protected by the statute —

Hugo L. Black:

What did he — what he did say was no real limitation?

Dominick L. Manoli:

Section 8 (d).

That Section 8 (d) —

Hugo L. Black:

The whole — the whole section?

Dominick L. Manoli:

The whole section.

He’s speaking about the whole section.

I won’t attempt to read —

Hugo L. Black:

Do you think that —

Dominick L. Manoli:

— all the —

Hugo L. Black:

Would you agree to that statement?

Dominick L. Manoli:

Well, insofar — I agree with — I agree insofar that — I know what Your Honor is getting at.

Dominick L. Manoli:

Of course it does limit the right of a union.

Normally, under these situations, the union would not be precluded from going out on strike until the expiration of the 60-day period.

Now, the union could not go out on strike during the life of a contract to obtain a modification or termination of that contract.

I’m now speaking with Section 8 (d) to one side apart.

The union could not go out on a strike to compel a modification or termination of the contract during the life of the contract because, under this Court’s decision in Sands, if the employees engage in such a strike during the life of the contract, they would be subject to losing their status as employees.

The employer could discharge them.

But, there is a period, however.

The waiting period under Section 8 (d) goes a little beyond the termination of the contract.

It is either 60 days after notice or the termination or expiration of the contract, whichever is later.

Concededly, the 60-day notice may go beyond — may go beyond the termination of the — or the expiration date of the contract.

Now, during that period, without Section 8 (d), the employees would be free to go out on strike without being subject to discharge but, now, Section 8 (d) does narrow that right and it does limit that right.

Hugo L. Black:

It doesn’t expand their right —

Dominick L. Manoli:

No, it doesn’t —

Hugo L. Black:

— to employees.

Dominick L. Manoli:

— it doesn’t expand their rights but, on the other hand, I say, Your Honor, that we should not read into this section such a drastic limitation upon a right which has been fundamental and which has been recognized throughout the history of the Wagner Act, as well as the Taft-Hartley Act.

Namely, the employee’s right to engage in strikes to protest there against their employer’s unfair labor practices —

Hugo L. Black:

You may —

Dominick L. Manoli:

— without some specific explicit language to that effect and the light of what I think are the very serious consequences that flow from a different result, from a different interpretation.

In the light of all those factors, we believe that the Board’s interpretation of the section, as well as which has been approved by the Second and the Seventh Circuit Courts of Appeals, is a correct one.

Felix Frankfurter:

Mr. Manoli, this is a very active provision of the law.

I mean, have these situations are really been frequent before your Board?

Dominick L. Manoli:

Well, these are the only two — this case, Your Honor, and the Wagner Iron Works case in the Seventh Circuit, which is now also pending before this Court on petition for certiorari and to which we have recently consented.

These are the only two cases that I know of.

The question, however, has arisen, Your Honor, in — in situations where you do have a contract and where the union or — may seek to — may wish to terminate or to modify.

And, Section 8 (d) clearly applies in that situation, but the question is, what is the waiting period prescribed by Section 8 (d) in such situations?

We — there is a case, now pending upon our petition for certiorari before this Court in the Lion Oil case, which brings up that problem.

Here, the question is, does Section 8 (d) apply at all?

In the Lion Oil case, concededly, Section 8 (d) applies but the question is, how do you interpret the waiting period?

What does the waiting period mean?

Felix Frankfurter:

Isn’t that a question of assessing it in the period from — of 60 days?

Dominick L. Manoli:

That’s right.

Felix Frankfurter:

That’s a very different problem.

Dominick L. Manoli:

That’s a very different problem.

That’s quite right, Your Honor.

That question has come up before the Board two or three times but, on this issue presented here, the Wagner Iron Works and this case are the only ones that I’m aware of.

Thank You.

Earl Warren:

Mr. Fitzpatrick.

Bernard H. Fitzpatrick:

I can’t add very much to what Mr. Manoli said in answer to Mr. Justice Black’s question.

As far as I know, the bill was originally reported, the language originally appeared in S.1126 as it was reported by the Senate Committee on Education and Labor to the body.

In that form, it was a second proviso clause, that is, the section first to find what collective bargaining was generally.

Then, it says “provided that where there is a contract, these obligations follow,” and then, at the tail end, in the same position that it is now, it said “provided, further, that any employee who strikes during this period shall fall from the status,” using substantially the words of their mouth.

Hugo L. Black:

I understand you to say that, first, it’s here as the bill was reported out by the committee —

Bernard H. Fitzpatrick:

As it was report —

Hugo L. Black:

— or as the bill was offered in the Senate?

Or, was the bill —

Bernard H. Fitzpatrick:

It was offered in the Senate by — it was a committee bill as originally offered in the Senate.

I do not know whether it appeared in any of the antecedent bills which went into the makeup of 1126.

I would like also to comment a moment on, perhaps a little differing concept evoked by Mr. Justice Frankfurter’s question to Mr. Manoli, concerning the relationship between the contract issue and the loss of status issue.

I would think that the logical way for this Court to approach the problem would be to consider, first, the loss of status issue because, apparently, that goes to the jurisdiction of the Board.

If there are no employees, the Board has no jurisdiction to entertain a proceeding, and the effect of this loss of status clause is to rob these men of whatever status they had as employees.

I would think that it was rather an absurdity to have the National Labor Relations Board conduct a proceeding to determine whether there were unfair labor practices in order to determine whether or not it had jurisdiction to determine whether there were unfair labor practices.

I would like to say, further, concerning my little passages arms with the Chief Justice, that the arguments used by the Chief Justice were the arguments used in some part by the minority in attacking this piece of legislation in both Houses.

I am told by my opponents that the use of minority members are no criterion of what the intent of the legislation is.

I merely mention that.

I think it was appropriate that those arguments were used on the other side of the street.

I think it has no bearing, perhaps, as they say, on the construction of the statute that such arguments exist.

One other thing, again adverting to a notion of Mr. Justice Frankfurter’s, expressed in the questioning is the odd mixture of motivations which the Board must unravel in any one of these cases.

Now, ordinarily, when you think of unfair labor practices in this connotation, you think of somebody being fired over an issue of discrimination, and that’s the simply way.

But, it isn’t always the simple way in which an unfair labor practice is — an unfair labor practice occurs because one of the unfair labor practices is refusal to bargain.

Let us say, the fact situation — the fact situation based on England — on Inland Steel case is assumed.

Bernard H. Fitzpatrick:

There, the union came in and asked for a pension.

The employer said, “Well, we will bargain with you on all other demands but we will not bargain with you on your pension.

We think that is not a bargainable issue.

We’re not required to bargain under it.”