National Labor Relations Board v. Cabot Carbon Company

PETITIONER:National Labor Relations Board
RESPONDENT:Cabot Carbon Company
LOCATION:Fargo, North Dakota

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 360 US 203 (1959)
ARGUED: Mar 24, 1959
DECIDED: Jun 08, 1959

Facts of the case


Audio Transcription for Oral Argument – March 24, 1959 in National Labor Relations Board v. Cabot Carbon Company

Earl Warren:

umber 329, National Labor Relations Board, Petitioner, versus Cabot Carbon Company and Cabot Shops, Inc.

Mr. McDermott.

Thomas J. McDermott:

May it please the Court.

This case is here upon a writ of certiorari to the United States Court of Appeals to the Fifth Circuit.

This case involves a determination by the Labor Board that certain employee representation committees are labor organizations within the meaning of Section 2 (5), the Taft-Hartley Act and that the respondents, referred to herein as Cabot, dominated, interfered with, assisted and supported those committees in violation of Section 82 of the Act.

The court below while accepting the Board’s finding that Cabot in fact dominated, interfered with, assisted and supported the committees in question, disagreed with the Board that the committees are labor organizations and therefore, the Court found that no violation of Section 82 had occurred.

Hence, the basic and only question before this Court is whether the committees are labor organizations within the meaning of the Act.

The essential facts of the case may be briefly stated as follows.

During World War II, an employee representation committee was established at each of Cabot’s plants or installations in line with the work production Board’s encouragement of joint labor management committees to promote production and efficiency.

The employee representation system was continued after the war and a committee was set up for each new plant acquired by Cabot.

The committees have no formal organization.

There are no membership requirements, no dues and no officers.

Organization is limited to the election once a year by the employees, committeemen and their alternates.

The committees’ bylaws provide that the purposes of the committee are to bring about a better understanding between management and the employee and to provide a definite procedure for considering employees ideas with respect to problems of mutual interest, such as safety, increased efficiency in production and the improvement or the encouragement of ingenuity and initiative.

The bylaws further provide the committees shall meet at regular monthly and special meetings called by the management, make recommendations on employee suggestions, submitted under Cabot suggestion plant and handle grievances in nonunion plants or departments.

The committees in addition to handling grievances in discussing with management, problems concerning plant production efficiency, have dealt with a wide variety of other matters.

Thus, doing a period covered by the complaint, the employee committees have complained about, discussed, made request and recommendations, and otherwise, dealt with Cabot with respect to seniority in the transfer of employee, job classifications, job bidding, improvement of working facility, overtime records and time cards, the merit system, layoff and makeup time, working schedules, vacation and sick leave, the allocation of company houses, holidays, and other matters affecting their employment.

And while management did not accede to our request, it did frequently act upon request or complaints made by this committee.

First among other things, management agreed to change from a company to a plant seniority system in certain plants to put up vents in tops of warehouses, to furnish workloads at cost, to permit employees to report early and leave early on weekends, and to establish an annual basis for allocating overtime.

Although there’s no provision in the bylaws for Central Committee, Central Committee exist the part of the employee representation plant is composed of the chairmen of each plant committee and meets annually with top management.

The central committee at its 1955 and 1956 annual meetings with Cabot’s Director of Industrial Relations, Mr. Reno Stinson, made proposals and had discussions with respect to matters similar to those handled by the plant committee.

These subjects included among other items, a three-week vacation for employees with 10 year’s service, annual sick leave and sick or disability benefits, whether shiftmen should be permitted to make up days lost in work, a request for the creation of new job classifications, a proposal for greater uniformity among the different plants and maintaining job classifications, more opportunities for employees to shift from plant to plant, from department to department, and finally, proposals for a general wage increase.

With respect to each of the proposals or requests made by — at these meetings, Director Stinson set forth Cabot’s position or policy, discussed whether or not acceding to the proposals or to requests would be economically feasible in the point of view of Cabot and sought to reach some solution.

In some instances, Stinson expressed approval of the request or he promised to do — to see what could be done about remedy in a situation complained of.

In other instances, Stinson told the committeemen to take it up with local management.

In still other instances, Stinson expressed disapproval of the request and gave his reasons for doing so.

On the basis of these and other facts in the record, the Board determined that the committees in question are labor organizations within the meaning of Section 2 (5) of the Act.

That section reads as follows and I quote.

“The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plant, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”

When the activities of the committees, as I have described them, are put down beside, playing an explicit wording of Section 2 (5), the conclusion seems quite clear that the committee exactly the statutory definition.

Thomas J. McDermott:

Thus, employees participate in these committees through their elective representatives and the committee that exists at least in part for their purpose of dealing with Cabot and employer concerning grievances and working conditions.

Why then did the court below find the committees not to be labor organizations?

The answer lies in the Court’s erroneous belief that the term dealing as used in Section 2 (5) is coextensive with bargaining or negotiating as those terms are commonly understood.

Otherwise stated, the Court held that a group of employees is not a labor organization unless it exists for the purpose of bargaining or negotiating with employer.

The Court went on to find that the committees in this case exist for the purpose of discussing rather than bargaining with Cabot.

And therefore, the Court concluded that they are not labor organization.

In some, the Court below would limit the term “labor organization” as defined in Section 2 (5) to organizations which bargained collectively.

But such was not the intention of the Congress which originally wrote the definition of labor organization.

Section 2 (5), the present Act, was carried over without change from the original or the Wagner Act.

The legislative history of the Wagner Act is more fully detailed in our brief.

Demonstrate that Congress intended the term “labor organization” to be given the widest connotation and to reach specifically the very type of labor organization involved in this case.

But Senator Wagner’s first bill introduced in 1934 did not include by name, employee representation committee, and his definition of labor organization.

During the hearings on the bill, Edwin E. Witte, Professor of Economics at the University of Wisconsin, questioned whether the definition as been written “covers a situation that is most prevalent in this whole field of company unionism.

That loose organization, if you can call it an organization, but has no members, no dues, that is merely a method of electing representatives known as the employee representation committee, which is the most prevalent form of company union.”

At Senator Wagner’s prompting, Professor Witte proposed that the definition be revised to include by name the employee representation committee.

This was done in the final version of the 1934 bill.

The following year, Senator Wagner introduced this second bill which had amended became the Wagner Act.

It defined “labor organization” as “any organization of any kind or any agency or employee representation committee or plant in which employees participate and which exists for the purpose in whole or in part of dealing with employers concerning grievances, labor disputes, wages, rates of pay, or hours of employment.”

Ms. Frances Perkins, the then Secretary of Labor, proposed that the latter definition be amended by substituting for the word “dealing” the words “bargaining collectively” and by adding to the end of the definition, the words or conditions of work.

But Congress, although it added the words or conditions of work to the end of the definition, refused to change “dealing” to “bargaining collectively.”

The proposed definition as amended became Section 2 (5) of the Wagner Act, that Congress do not intend to limit the term “labor organization” to organizations which “bargaining collectively” as distinguished for merely “dealing.”

It’s further demonstrated by the memoranda which prepared at the time for the use of the Senate Labor Committee in which are detailed in our brief.

In one of these memoranda, the Senate Committee was advised as follows and I quote.

“It has been argued that an employee representation plan or committee arrangement is not the labor organization or a union but simply a method of contact between employers and employees.

But the Act is entitled to prescribe its own definitions of labor organizations, for its own purposes.

And it is clear that unless these plans are included in the definition, whether they merely ‘deal’ or ‘adjust,’ or exist for the purpose of collective bargaining, most of the activity of employers in connection therewith which we are seeking to outlaw would fall outside the scope of the Act.

The Act would thus be entirely nullified.”

It is evident from the forgoing I submit that the Congress which originally defined the term “labor organization” would not agree with the lower court’s narrow interpretation of it.

The same is to be said of the Congress which in 1947 reenacted without change the broad definition of labor organization contained in Section 2 (5) of the Wagner Act.

In doing so, Congress specifically disclaimed any intention to change the definition of labor organization.

Thomas J. McDermott:

Nonetheless, the court below held the exact opposite on the basis of a somewhat unusual approach to legislative history to its claim.

The Hartley or House bill contained a provision which would have permitted an employer to establish or maintain a committee of employee and discuss what matters of mutual interest, including grievances and working conditions, provided that the employees could not have a bargaining representative.

If this proposal had been adopted by Congress, the effect would have been to exempt such committees from the reach of the statutory prohibition against employer domination or support of labor organizations.

But Congress rejected the proposal.

In doing so, the conference committee stated and I quote.

“This provision is omitted from the conference agreement since the Act by its terms permits individual employees and groups of employees to meet with the employer and Section 9 (a) of the conference agreement permits employers to answer their grievances.”

The court below read the statement coupled with Section 9 (a) of the Act as amended to mean that Congress adopted rather than rejected as it did to propose any question.

This reading of the statute and legislative history is untenable.

The conference committee simply state — made it clear that there was no need for such a proposal because the statute otherwise adequately safeguard the right of the individual employee and of groups of employees to meet with their employer and discuss matters of mutual interest.

Section 9 (a) is the majority rule provision of the Act.

Its basic clause provides that the representatives designated by a majority of employee in a corporate unit “shall be the exclusive representatives in respect to rates of pay, wages, hours of employment, or other conditions of employment.”

This clause was qualified in the Wagner Act by a proviso which stated, “provided that any individual employee or a group of employee shall have the right at any time to present grievances to their employer.”

The Taft-Hartley Act added the following to both proviso.

“And to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement being in effect then in effect provided further that the bargain representative has been given opportunity to be present at such adjustment.”

The provisos thus deal with the right of individual employee and groups of employee where an exclusive bargaining representative has been selected.

And they give assurance that any individual employee or groups of employees continues to have the right to present grievances to their employer and to have them adjusted independently of the bargaining representative, subject to the latter’s right to be present at the adjustment in order to protect the bargaining contract or the interest of the entire unit.

The provisos do not deal with the question whether employee representation committees are labor organizations within the meaning of the Act.

And there is no basis certainly for inspiring that the provisos intended to permit employers to dominate or to support employee committees.

Indeed as previously noted, Congress made clear that there was no purpose to remove from the definition of labor organization, employee representation committees to the type involved here.

And thereby to sanction, there’s domination and support by employers.

In view of the positive disclaimer of any legislative intent to change the definition of labor organization, there is certainly no warrant for presuming as the Court did below that Congress effected such a change by indirections.

William J. Brennan, Jr.:

Well, how far does this go Mr. McDermott?

Could committees like this exist for — to discuss things other than those which you have outlined for us that here were discussed?

Thomas J. McDermott:

Committees such as this could exist to discuss — they could — they could exist to discuss grievances in working conditions.

The issue here is that they cannot be dominated or supported or assisted by the employer.

Earl Warren:

I take it Mr. McDermott’s of your — your position is that the — the employees could do anything they wanted in that — in that line —

Thomas J. McDermott:

That’s right, absent to the —

Earl Warren:

— to the committee, as long as they’re not — dominate in any way by the employer.

Thomas J. McDermott:

That’s right, in an absence — the presence of a majority representative.

Earl Warren:

Yes, yes.

Thomas J. McDermott:


Earl Warren:


William J. Brennan, Jr.:

Well — well then we’re not to be concerned here with the matters discussed but rather with how the committees were composed?

Thomas J. McDermott:

Well, no.

The issue — the court below said, with — with the Board that these committees were dominated and supported, etcetera.

But they had said there’s no violation of Section 82 because these committees are not labor organizations.

But you can’t determine whether they’re labor organizations unless you know what they — how they were composed and what they did.

Now, they doubt with Cabot as an employer concerning grievances and working conditions.

For example, they pointed out, they doubt with Cabot concerning —

William J. Brennan, Jr.:

Well, stop right there.

Thomas J. McDermott:


William J. Brennan, Jr.:

Would you say would be quite proper provided they were not dominated.

Thomas J. McDermott:

Provided they were not dominated.

William J. Brennan, Jr.:

Well then does that get down to how they were selected?

How do you determine that they were dominated?

Thomas J. McDermott:

Well, the — if I may point out first, that question is along here before for this Court because the court below agreed with the Board except to the Board’s findings that these committees were dominated and the respondents do not contend otherwise.

The domination exists in this case.

First, the bylaws were set up with the approval of management.

They could not be changed without approval of management.

If a particular plant or department failed to select a committeeman, the superintendent selected the committeeman.

The committees could not be increased in number without the permission of management.

The meetings were called by management.

The arrangement of the entire employee representation system was part and parcel of the management’s guide to new employees.

And as you will see from study in the record, the relationship that’s set forth between in employees’ representation committees and management would indicate that there was domination.

But to repeat, the Court below except to the Board’s findings that these committees were dominated, supported and assisted and the respondents do not challenge those findings before this Court.

William J. Brennan, Jr.:

They had held they were not labor organizations?

Thomas J. McDermott:

And held they were not labor organizations, basically because the Court said the word to “deal” must mean to “bargain” or “negotiate” and it — unless these organizations bargain collectively and I might say the Court had in mind the — the traditional sense to negotiate a contract, formal or informal, to sit across the table and — otherwise the union would do —

William J. Brennan, Jr.:

Well, is that what the issue in this case now (Inaudible)?

Thomas J. McDermott:

The issue in this case is whether these committees are labor organizations under the Act.

William J. Brennan, Jr.:

I mean, — no, the — pardon — and is that narrowed to the question whether deal is — means bargain?

Thomas J. McDermott:

Well, it’s narrowed to the question of whether the word “deal” as used in Section 2 (5) is coextensive with “to bargain” or “to negotiate.”

It is our position that the word “deal” cannot be — must not — does not have to be equated necessarily to “bargain, negotiate.”

In other words, the word “deal” has a broader connotation in “to bargain” or “to negotiate.”

Potter Stewart:

As to domination, it’s — it’s — it’s almost the part of the reasoning of the Court of Appeals and part of the argument of — of respondents that these are — that these groups were so dominated, so obviously dominated, they were creatures of the employer, that for that very reason they were not labor organization.

Thomas J. McDermott:

Yes, the —

Potter Stewart:

Is that almost the —

Thomas J. McDermott:

They argued that they’re not labor organizations because they never negotiated a contract or attempted to —

Potter Stewart:

Whether they were created —

Thomas J. McDermott:

— nor that —

Potter Stewart:

— by the employer and sustained and carried by the employer —

Thomas J. McDermott:

That’s correct.

Potter Stewart:

— for a different — the purpose is quite different in collective bargaining —

Thomas J. McDermott:


Potter Stewart:

— and that — almost because of that, obvious domination, that — that is one of the reasons that they — they say these are not labor organizations.

Thomas J. McDermott:

They proved it not to be a labor organization by the result of the domination.

Respondents contend in their brief to this Court that to vote a committee to this type, our labor organizations would bar employers and employees in getting together and discussing matters of mutual interest.

The short answer to this contention is that the Board’s finding would not establish such a bar.

The Board’s finding and ruling merely precludes the employer from dominating, supporting, assisting or interfering with the committee.

In conclusion, I wish to find out.

William J. Brennan, Jr.:

There is a bargaining agent here, is there not?

Thomas J. McDermott:

In — in — they’re a total of some 18 plants.

In seven of the plants, there is a bargaining agent.

In certain to those plants, the two units coexist and one of the plants of the six, that’s no longer true.

And in that regard, it’s interesting to note that in several of the plants where you have both a certified union and the employer representation committee, you had the committee handling grievances for outside the bargaining unit and also, they have dealt with the company on minor matters involving working conditions, for example, water cooling.

And there has been conflict.

Conflict has resulted in certain other plants where the two committees existed.

In conclusion, I wish to point out that since the enactment of Taft-Hartley, the Courts of Appeals to the First, the Second, the Sixth, and the Seventh had held that employee representation committees, the type involved here, are labor organizations within the meaning of Section 2 (5) of the Act, and that their domination and support by employers violates Section 8 (a) (2).

In conclusion, I wish to respectfully urge this Court do likewise.

Earl Warren:

Mr. Hillyer.

Haywood H. Hillyer:

May it please the Court.

Haywood H. Hillyer:

I disagree with counsel’s statement of the holding of the court below.

The court below made no boons about what it was deciding.

If Your Honors will refer to page 107 of Volume 1 of the record, you will find the statement by the lower court.

We — we rest our holding squarely on the meaning of the Act as evidenced in its legislative history.

The Act permits and Congress intended that it should permit the existence of employee management committees which provide a forum for discussion of matters of mutual interest, but which are not formal organizations do not follow collective bargaining procedures, formally or informally, have no powers to bargain collectively and take no action inconsistent with the terms of an existing collective bargaining agreement.

If the Court please, it is our position that the question before, Your Honors, is simply this, whether the Act as presently written, forbids an employer to set up a committee of his employees to discuss with him problems of mutual interest when that committee is not set up to engage in, does not purport to engage in, and in fact, does not engage in any collective bargaining activity.

Now, the statement of facts —

Earl Warren:

Before — before you leave that, Mr. Hillyer, did they negotiate such things as determining whether you would have plant seniority or company seniority?

Haywood H. Hillyer:

There was no negotiation on that, Your Honor, and the record so reflects.

What happened in that instance was that the committee brought to the attention of local plant management that some of the employees were dissatisfied because they had company seniority rather than plant seniority.

The record will reflect that plant management decided that if there was any dissatisfaction that they would like to find that out themselves.

They therefore held a plebiscite amongst all of the employees, management did that.

All of the employees in that plebiscite voted to change from company seniority to plant seniority.

Management granted their request.

There was no negotiation about it whatsoever, no bargaining, if the Court please.

Earl Warren:

Then were the — were there any — any other things that were filling the legitimate field of — of bargaining, collective bargaining that were determined by — by understanding between this committee and the management?

Haywood H. Hillyer:

Your Honor, there was no understanding between the committee and management.

Earl Warren:

Or did they work out?

Haywood H. Hillyer:

They —

Earl Warren:

Did they work out?

Haywood H. Hillyer:

They have worked out.

Matters were discussed, problems were worked on, but it was not in the nature of a bargaining agreement.

Now, I call to Your Honors’ attention that the trial examined, the Labor Board, the court below, and inferentially, petitioner’s own brief, and the question presented discloses if there was no collective bargaining or attempted collective bargaining.

There was no negotiation.

It was merely a question of employees presenting their ideas to management and management, whether or not they chose to accede to the ideas, to adjust any grievances, it was all up to management.

Anything that flowed from those conferences as the trial examiner found was a result either of the company’s own magnanimity or the company policy, and I think that is almost an exact quotation of his findings.

What would have been you — your view as to whether this was a labor organization within the meaning of the definition that term in the Wagner Act?

Haywood H. Hillyer:

Well, if Your Honor please, I do not subscribe to counsel’s argument as to the clarity of the purpose of the Wagner Act.

I may say that the — we have not urged our interpretation of the Wagner Act because we felt that the purpose of the 1947 amendments was so clear.

But, if Your Honor will refer to the hearing — the 1934 hearings on Senate bill 29, 26, which is contained in the first volume of the legislative history of the 1935 Act at pages 39 and 40, you will find that Senator Wagner, the proponent of the Act stated, “It is equally important to note that the bill does not prevent employers from setting up societies or organizations to deal with problems of group welfare, health, charity, recreation, insurance or benefits.

Haywood H. Hillyer:

All of these functions can and should be fulfilled by employer-employee organizations.”

And this is the important quote, Your Honor.”

But employers should not dominate organizations which exist for the purposes of collective bargaining in regard to wages, hours, and other conditions of employment.”

So, Senator Wagner was there putting the same emphasis that we put here.

These organizations do not exist for the purposes of collective bargaining.

Therefore, they are not prohibited and I dare say they were not intended to be prohibited under the Wagner Act.

Earl Warren:

Well, I’m just wondering if that — if that language of Senator Wagner concerning health in welfare and — and so forth is broad enough to include these — these sayings like seniority, plant seniority or — or company seniority and all the other things that — that you’ve been talking about including reporting disturbing elements in the — in the rank and file of the — of the company.

Are — are those included would you say within — within that —

Haywood H. Hillyer:

Not within that language, no Your Honor.

Earl Warren:

Well then, what —

Haywood H. Hillyer:

But the important part is —

Earl Warren:

What relevancy does it have?

Haywood H. Hillyer:

The relevancy is that Senator Wagner is placing the importance on the fact that only those organizations are forbidden which exist for the purposes of collective bargaining in regard to wages, hours and other conditions of employment.

That is the importance there.

Now, when — in the 1935 hearings, two legislative history of the 1935 Act, page 23, 33.

Senator Wagner again makes virtually the — the same statement.

It concludes, the bill intends merely that those agencies designed to represent the workers for purposes of collective bargaining shall be free from the domination or even the interference of the other party.

Now, if the Court please, there’s no question that the jurisprudence under the Wagner Act is adverse to opposition.

In fact, I know of no case here that were decided that I can claim to be in our favor fully.

It was because of this jurisprudence —

Under the Wagner Act.

Haywood H. Hillyer:

— under the Wagner Act that Congress was dissatisfied and that they undertook in the 1947 amendments to do that which we say they did and that was to legalize these precise committees.

Now —

Unless that the — the definition of labor organization with respect to which you say there was this anteceding legislative history was exactly the same in the Wagner Act as it turned out to be in the Taft-Hartley Act, isn’t that —

Haywood H. Hillyer:

Well, I don’t think I need to cite, Your Honor, authority that you have to read the statute as a whole and you have to read the legislative history as a whole.

The definition —

Section 2 (5) was in haec verba, wasn’t it?

Haywood H. Hillyer:

Section — Section 2 (5) was repeated ipsissima verba.

There wasn’t any question about that.

But there also is no question, if the Court please, that the prohibition of Section 8 (a) (2) no longer extends to these committees under the clear congressional intent.

Haywood H. Hillyer:

Now, I may say that perhaps it becomes disjointed in the argument and have gotten away from the fact, there are few facts that I would like to emphasize to Your Honors.

Earl Warren:

Well, may I ask just one more question then I’ll — I won’t bother you.

But, I would like to know, is there any legislative history as to the section defining labor organizations in the Taft-Hartley Act?

Is there anything said in the legislative history as to whether it is to have the same or a different meaning in Taft-Hartley?

Haywood H. Hillyer:

I do not construe the legislative history saying one thing or the other, if the Court please.

Earl Warren:

Would you say there is none?

Haywood H. Hillyer:

There is nothing at that section alone —

Earl Warren:

Nothing (Voice Overlap) —

Haywood H. Hillyer:

— is to be changed.

Earl Warren:

I see.

Haywood H. Hillyer:

But, the meaning of that section in the light of 8 (a) (2) which is the prohibition section has been clearly changed, if the Court please, without changing the words of Section 2 (a).

I would like to call to the Court’s attention here firstly that this is an unusual factual situation.

These committees here were not established at a suspicious time.

They were not even established at the employer’s own motion.

They were established at the request of the Government of the United States.

Not only did the Government of the United States suggest that they establish the committees, the Government also provided them with forms of bylaws and after the committee’s adopted and edited those bylaws, the Government approved them on official agency of the Government, the War Production Board.

Clearly, it was not the intention of the Government to set up something that would deprive the employees of their right to self-organization, known whether it was respondent’s contention — intention.

Now, if the Court please, this record is complete with proof that this respondent has never sought to prevent its employees from bargaining collectively from relying to the union if it wished to, if they wished to.

The best evidence I would say if that is the fact that we have had employee committees and these unions existing side-by-side in the same plant for years.

And despite what counsel has said, there is not one set of order of evidence in this record that prior to the filing of this case, if Your Honor please, there had ever been any conflict between the committees and the regular established bargaining representatives of the union committees.

So much so what —

Did the union file the charge?

Haywood H. Hillyer:

The union filed this charge, Your Honor, at — at the Canal Plant in Louisiana, a comparatively new plant.

And at a later date, that union became a certified bargaining agent and we enjoy good relations with them today.

Earl Warren:

Has there been any expansion of the activities of — of these committees since war time days since you —

Haywood H. Hillyer:

No, Your Honor, that is —

Earl Warren:

— you set them up.

Haywood H. Hillyer:

I beg your pardon?

As a matter of fact, their activities have contracted somewhat.

During the war times, they — they engaged and shared the ride and other particular war time matters.

Haywood H. Hillyer:

Another — now, if the Court please, I think that at this point, it is appropriate to refer to the legislative history of the 1947 Act and in that connection, I think that the Court must remember the mood of Congress in which these amendments were adopted.

The Court will remember that after World War II, there had been a rush of strikes.

Public resentment against the public inconvenience had caused a great deal of pressure to have Congress change the Wagner Act so as to make it as has been stated in the debate, a two-sided Act and not a one-sided Act.

I do not argue that point except the state that that was the pressure, and that was what Congress set out to do.

Now, it was perfectly obvious and Your Honors probably know that, but the legislative history reflects it anyhow, that there would be a presidential veto if any Act such has been proposed would be passed.

In the House, the pressure was such that they had enough of a majority to override a presidential veto.

In the Senate, the issue was in doubt.

The Senate therefore was in favor of, let us say, a milder bill.

The House was in favor of a more militant bill.

There can be no question as to what the intention was in the bill which was originally introduced in the House and which is commonly called the Hartley Bill.

In the bill, Section 8 (d) was inserted as a new article and 8 (d) (3) provided, this is on page 15 of our brief, commencing on page 14, that notwithstanding any other provision of this section, the following shall not constitute of the evidence of an unfair labor practice under any of the provisions of this Act.

8 (a) (1) was a free speech amendment which was later included in another provision.

8 (d) (2) was the permission of employees to confer with their employers without loss of time or pay.

That was later included in another portion of the Act.

8 (d) (3) is the one here involved and it reads, “Forming or maintaining by an employer of a committee of employees and discussing with it matters of mutual interest, including grievances, wages, hours of employment, and other working conditions, if the Board has not certified or the employer has not recognized a representative as their representative under Section 9.”

That was explained in House Report Number 245, which is also found on page 15 of our brief as follows, “During World War II, many employers with the help of the Government set up labor management committees with which they discussed matters of mutual interest.”

This exception to Section 8 (a) (2) permits employers whose employees have not designated the bargaining representative to set up similar committees and to discuss with them wages, hours, working conditions, and other subjects of collective bargaining as well as other matters of mutual interest, and this is italicized.

But an employer may not discuss subjects of collective — may discuss subjects of collective bargaining only if the employers do not have a certified representative on one that the employer currently recognized as exclusive representative of the employees.

This clause does not permit company unions.

The employer and the committee may discuss and reach decisions but neither side may require the other to make an agreement or to follow a procedure of collective bargaining set forth in Section 2 (11).

The employees generally may elect members of the committee but Section 8 (a) (1) and (2) forbid the employer to create a formal organization having members among employees generally or other common characteristics of a labor union.

Now, that section was passed by the House, if the Court please.

The Senate amended the bill by substituting their own bill which they had worked out on — in that chamber.

The House refused to concur in the Senate amendments.

The bill went to conference.

The conference report was accompanied by a statement on the part of the managers of the House, which if the Court please, is the source of knowledge of legislative intent in this case.

I don’t think if there can be any serious quarrel with that statement.

Now, in the conference committee report, it is perfectly obvious when one reads it from beginning to end that the conferees on the part of the House are attempting to reassure the House, that even though they may have given in to the Senate on matters of language, they have preserved the substantial intent of the House bill.

Not in all instances because Representative Hartley made it quite plain that they had yielded on three or four important matters, no one of which is that which we are dealing with here.

Representative Hartley also made it quite plain in the debates prior to the final passage of the bill as reported out of the conference, that there was more in the bill than met the eye.

Haywood H. Hillyer:

It was necessary to read the bill, in other words, in the light of the conference report and the statement of managers on the part of the House.

When the bill is read in that fashion, it is seen that what the conference report does is to incorporate the benediction, if you will, of the former 8 (d) (3) in the Hartley bill into the conference bill by indirection, it’s true, but nevertheless, it was done and that was a legislative intent, and if that was a legislative intent, that must be the meaning of the statute.

William J. Brennan, Jr.:

Mr. Hilyer, that requires the (Inaudible) if I understand your argument, what you’re saying here is (Inaudible) as to groups and individual parties.

Haywood H. Hillyer:

When considered in the light of 8 (a) (2) —

William J. Brennan, Jr.:

Was there any conference as to what the House bill posed?

Haywood H. Hillyer:

Because — yes, Your Honor.

William J. Brennan, Jr.:

(Inaudible) the House bill, does it authorize (Inaudible) to hold in this case matters of mutual interest including (Inaudible) wages, hours of employment, and other work.

Now, if we get over to 9 (a), that’s where it boils down to present grievances, are we to read into the words grievances (Inaudible)

Haywood H. Hillyer:

I think if they can be well-read into the word “grievances,” Your Honor.

At any rate —


Haywood H. Hillyer:

At any rate I don’t —

William J. Brennan, Jr.:

I think — I think the labor management is a problem for —

Haywood H. Hillyer:

The general —

William J. Brennan, Jr.:

(Inaudible) doesn’t have quite that.

Haywood H. Hillyer:

Ordinarily, I would not consider a grievance to cover, let us say, a negotiation on a general wage increase.

And I think that that would be the issue of connotation of the word.

But in this particular context, what this conference report is telling the world is that the effect of allowing the employer to answer these grievances and to adjust them has the same effect on — in regard to employee committees such as we have here as though Section 8 (d) (3) had been enacted.

William J. Brennan, Jr.:

Well, now one other thing.

I noticed (Inaudible) applicable to the situation if the employee did not have bargaining —

Haywood H. Hillyer:

That was in the Section 8 (d) (3).

William J. Brennan, Jr.:

(Voice Overlap) —

Haywood H. Hillyer:

Yes, Your Honor.

William J. Brennan, Jr.:

(Inaudible) in the report, it makes some reference to the House bill and explained (Inaudible) would have authorized the committee employees to discuss matters (Inaudible) if the employees had not have bargaining?

Haywood H. Hillyer:

Your Honor —

William J. Brennan, Jr.:

(Voice Overlap) provisions on where this is okay.

Haywood H. Hillyer:

I may say, Your Honor that there is no evidence in this record, that these committees where they co-exist with a bargaining representative discussed any of the matters that come within the province of the bargaining representative.

Tom C. Clark:

Well, I suppose though, could that be so, again, if that’s what’s they all were, some of the things that they listed for —

Haywood H. Hillyer:

There were a number of things that were listed, if the Court please, with regard to those plants at which there were no union representatives.

I may say that we have plants involved in this case where they have 25 employers out in the wharves of our second largest state and the —

William J. Brennan, Jr.:

Are these plants separate units?

Haywood H. Hillyer:

Each plant is a separate — for purposes of administration, it’s a separate —

William J. Brennan, Jr.:

(Voice Overlap) purposes, collective bargaining?

Haywood H. Hillyer:

There is no collective bargaining, Your Honor, except in the union plants.

William J. Brennan, Jr.:

And in the union plant —

Haywood H. Hillyer:

And in the union plants, each plant is a separate unit.

William J. Brennan, Jr.:

Separate unit.

William O. Douglas:

What —

Haywood H. Hillyer:

And —

William O. Douglas:

What about this proviso in Section 8 (a) (2) that is subject to rules and regulations by the Board, (Inaudible) promulgated into these regulations?

Haywood H. Hillyer:

Not to my knowledge, Your Honor.

William O. Douglas:

So, that proviso isn’t operated — operative in — in the absence of rules.

Haywood H. Hillyer:

That is not the way I read it, Your Honor.

I don’t believe that that’s been the way that the Courts have interpreted it.

William O. Douglas:

You — you do rely upon that 8 (a) (2)?

Haywood H. Hillyer:

As part of the entire picture of the legislative intent.

William O. Douglas:


That is Section 9 (a), the proviso in Section 9 (a) and the definition in 2 (5).

Haywood H. Hillyer:

And what I primarily rely on, if the Court please, is that Congress has told the Court that that’s what they’re doing.

It would be difficult, I grant you, just by reading those sections to import into those sections, meaning which Congress attributed to them, where not for the fact that you have a very clear explanation in the conference report.

The decision below, if the Court please, does not go beyond the facts of this case.

We have, as I previously stated, a rather unusual case, there’s no question that the employer has used these committees, had tried to use these committees or that they ever have in fact, deterred unionization.

The evidence is all to the contrary.

Now, I submit to the Court that the — the argument which we make here is entirely in keeping with the theory, with the mood of the 1947 amendments.

The primary purpose of the National Labor Relations Act and of the National Labor Relations Act as amended is to promote industrial peace.

The best way of promoting industrial peace is for the employer and the employee to understand one another’s problems.

These committees serve as a channel of communication between the employer and the employees to understand one another’s problems.

And I believe that frankly, it would be a bad thing and not in keeping with the primary purpose of the Act to restrict a channel of communication that is not otherwise harmful and there is no evidence in this record, if the Court please, that these committees have been harmful to anything.

In fact, they had served a good and useful purpose.

We submit that the decision of the Court below is correct and should be affirmed.

Earl Warren:

Mr. McDermott, do you have anything further?

Thomas J. McDermott:

Only one point, Your Honor, you asked the question of what — asked the question whether in reenacting Section 2 (5) of the Wagner Act, did Congress change the definition of labor organization?

The answer is that Congress did not change the definition and indeed, the House conference reports stated expressly that it was not being changed.

Earl Warren:

We’ll recess.