RESPONDENT:District 50, United Mine Workers of America
LOCATION:Philadelphia Board of Public Education
DOCKET NO.: 64
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 355 US 453 (1958)
ARGUED: Jan 06, 1958
DECIDED: Feb 03, 1958
Audio Transcription for Oral Argument – January 06, 1958 (Part 2) in National Labor Relations Board v. District 50, United Mine Workers of America
— proper, furthermore familiar with the practices of the Board — for me in response to the suggestion by Mr. Justice Brenan, that the Board has respected an election conducted under a state agency and declined to hold the Board election within a year thereafter, a fundamental fallacy.
William J. Brennan, Jr.:
We can give you that exact case within 24 hours.
I don’t have it.
May I — may I ask you exactly what — is it that the Board has ordered such a non-board election?
They have respected one that — was held and it was brought to their attention.
I don’t think they ordered such an election, but there is nothing in the law or to prevent them from doing it.
Well, that’s — that’s rather important to me.
Would it — would an order — will an order requiring or conditioning or would an order finding an unfair labor practice which is not in controversy here, I figured, I mean, before, I figured.
No — no unfair — no controversy about an unfair labor practice by the employer.
There is no — would — would an order by the Board in order to rectify and correct and prevent the recurrence of the continuing influence affect an unfair labor practice by requesting that some, a state agency make an election, would that be all right?
Well, it’s wholly unnecessary.
But I — and that is the question.
Suppose they did it, like in a — I often see the Government are doing this that I think are unnecessary.
Well, the — the answer is found here, Mr. Justice Frankfurter.
Before you ever get to that, their fallacy is in supposing that because District 50 elected not to file the affidavits and the financial reports that the Board cannot conduct an election.
The Board can conduct an election.
District 50 didn’t raise this question.
We didn’t commit an unfair labor practice.
If we had committed an unfair labor practice as a part of logic, you might say that District 50 raised the question.
No, but the Board found what — what this unfair labor practice means, you correct me if I’m wrong, is that the employer in violation of the Act exercised, intruded into, it interfered with, dominated for its purpose the action of the employee.
And in order to see it that that influence, that illicit influence is dissipated, the Board has a right to recommend or formulate certain measures.
And one of the measures that they suggest is that there be some independent, some antiseptic mode of determining what the real will of the employees is, isn’t that right?Isn’t that what it gets down here?
I can’t accept one — one statement that you make if the employer in this case dominated.
Well, I — we — I’m —
He — he intruded —
— on the —
He did something the law forbad.
We don’t dispute that.
We couldn’t dispute —
Well, if it’s something the law forbad in order to dissipate, in order to render completely nugatory the continuing force or influence of that illegality, the Board uses its head towards that to measure.
That — the problem was offered in here, when as the evil influence or the illicit influence, I am not using evil in any condemnatory moral sense.
I am talking about something the law forbids.
And the Board says, “We want to get the free willing of the employee.”
Now, they’re certainly entitled to do that, aren’t they?
They say, in order to be sure that that illicit influence doesn’t persist, we — we are called upon, we have the power to devise ways and means to judge that that’s — there is such a dissipation.
Now, you suggest, unless I misunderstand you, that that could be done from some state agency.
I stood — I stated not — I don’t suggest that the Board call in a state agency to hold an election.
No, but —
I — that would be absurd because they can hold it themselves and run a segment, trust themselves, doesn’t — does to anybody else.
William J. Brennan, Jr.:
Do you mean by that, Mr. Harris perhaps this, the necessity for a compliance in a certification proceeding usually arises from the fact that District 50 or the union that wants the election and to be certified invokes the processes of the Board to obtain the certification.
But that in this instance, it’s not important whether the union is or is not certified.
It may nevertheless accomplish its objective of discovering the freewill of the employee by itself conducting an election without the end result of a certification.
That is our position exactly, Mr. Justice Brennan.
The certification is merely the handing a diploma to a man who has already completed his work for his law degree or his college degree.
And why would it have that power if you say, “could have”?
What’s the basis of —
(Voice Overlap) —
— of holding an election, would Mr. Lewis really like to have the Board go in and hold elections in — in — among his locals, when he refused to have any trouble with the Board?Would he like that?
Well, I can’t say what Mr. Lewis would like —
Well, I just wonder whether —
— because I have never discussed it with him.
But that’s a rhetorical question.
And with the colossal brain that he has, I don’t think I can read his mind, at least not enough to be willing to state to this Court what he thinks.
Well, I — (Inaudible) to imply what we all know he’s not friendly to the Board, is he?
He’s not what?
Friendly to the Board and he wants to do business about it.
Well, I — I don’t — when men get into jobs of such great magnitude, like the members of this Court, it isn’t a question of friendship.
It isn’t any personal animosity towards the members of the Board.
It’s a question of broad national policy of rights which we have under the law as passed by Congress and they don’t acknowledge them and we on proper occasions, try to bring a new question to this Court so that this Court can decide it, in this particular case while the Board brought it to you.
We chose two cases, one in the Fourth Circuit and one in the District of Columbia Circuit.
In the Fourth Circuit, it’s an unfair labor practice of premature recognition while there’s a question concerning representation pending.
In this one, you’re familiar with the unfair labor practice.
The Fourth Circuit in that case, Mr. Chief — the Chief Judge Parker made this remark.
He said, “Well, the men who — the unions that have complied are not here, what difference was made to them?
Was it to require certification?”
They would have to prove that they had a majority.
The Board can make us prove it and the court below said the only thing under the Board ruling.
They didn’t use that phrase.
They said, “If they do conduct an election, District 50 will not be on the ballot.”
It’s been done.
You held an election in which the men vote whether they want teamsters or no union.
And we’re not on it.
And we explained to the men, vote no union then nobody is certified.
Now, in this case, the Board can’t rest on the room while District 50 raised a question and we can’t conduct an election because we didn’t raise the question.
In order to raise the question, we would have to file a charge and, “Oy, we’ve been gifted an unfair labor practice.”
You might logically say, “Well, you called that question to come up, but we’re merely exercising rights that were given us by the Congress in a carefully studied piece of legislation and the amounts in that law, what the public policy was.”
And there is no doubt about the public policy to guarantee full freedom of designation to the man in full freedom of choice of representatives.
And when the men have that right for this Board to say, “We would go contrary to the public policy of Congress.”
These men down here want District 50.
Perhaps, they want Mr. John L. Lewis on account of his reputation for strength and for administering his welfare fund for the benefit of the minor.
We want him and to say that you can never get the union of your choice.
In my mind, that is administrative amendment of an Act of Congress.
Now, it won’t bring any pressure, Mr. Justice Frankfurter on the — the unions that it qualified, if I’m correct, because they’ve already complied the five affidavits and the certificate is something if they get automatically if they demonstrate their majority in the election.
But they could be complied in five minutes.
If they decompiled, that wouldn’t take them out from under the Board election.
What would they gain by decomplying in that particular?
The — the Board can conduct an election.
They are wrong in saying they can’t conduct an election.
I don’t understand what you mean the Board in this case has could conduct an election.
Just — just spell that out, they don’t extend it because the men will just — they get on — they wouldn’t vote.
They could frustrate that as a matter of cause.
Well, in any case if the men, 100%, they’ve refused to vote for anything anybody wants them to vote on.
And so you can’t correct that no matter what you do.
But, if the Board conducts it and every man there votes no union, then the teamsters, say they asked for the election, they can’t be certified.
Suppose the Bowman Transportation, Bowman asked for the election because the teamsters say, “We want it.”
He asked it and the Board conducts the election.
The teamsters don’t get a majority and the Board does not certify the teamsters to (Inaudible) of Bowman.
Then, he knows that evidently his men want District 50.
Charles E. Whittaker:
Mr. Harris, may I ask you please?
If yours had then a complying union, then would you concede that the Board’s order was a valid order?
I would — I don’t think it’s necessary.
I had that question asked me by Judge (Inaudible), I believe.
It is necessary for us to win this case before this Court to argue the validity there or none of that order with reference to a complying union.
Charles E. Whittaker:
Now, may we go on?
If the Board did have power to adopt the order that it did adopt, and it would have been valid as against a complying union, then you’re limited here, are you not, to a discussion of whether or not the Court of Appeals had power to alter that order?
Now, did they have?
Are you going to discuss that in your argument?
Did the Court of Appeals have power to rewrite the Board’s order?
Yes, I’m willing to discuss that.
Charles E. Whittaker:
The — I used a wrong phrase a moment ago due to my inexperience in the detail to this labor work.
The election they conduct is — it would be — the ballot would be, Teamsters – yes and Teamsters – no.
Not “no union.”
If they were asking for an election where the teamsters were playing.
I was wrong in saying it was both teamsters or no union.
That — excuse my inexperience.
The situation in this changing world grew up when the Sections 9 (f), (g), and (h) were added to the Taft-Hartley Act.
Under the old law, certification was not subject to those restrictions.
Now, when the Taft-Hartley Act came in, the Board blithely went on applying the same rule.
And to our mind, if we have a right to elect, to file or not to file, and I think Mr. Justice Burton and the Court made that point clear in the Arkansas Flooring case.
If we have the right of election to file or not to file and if the men have a right to choose a union that has not filed, then the Board by no form of contrivance of order can take away that right from the men and that right from the union expressly conferred by the Act.
Now, they talked about something incidental.
In looking up incidental in Webster, the phrase meaning that it gives that is happening as a chance or underlying feature of something else, casual.
It’s not a prime concern.
It is extremely difficult for me to see anything undesigned whereas a union that the Board knows has never filed under 9 (f), (g), and (h), nor did the determination of the international union has never survived.
And they issue an order which says, “Because of the state of your mind, because you insist on your rights under the device of this order, we’re going to put you out of business down here and you will never be able to represent it.”
And if they could do it in that instance, why, all the employer would have to do, he’d say, “I will — I will give a little assistance to District 50.”
Whisper it to the other union and let them file an unfair labor charge and then I’ll never have District 50 again.
I don’t know whether the Bowman Transportation Company wanted any union or not.
Its in the — they might have been figuring they were taking the lesser of two evils, because they haven’t appeared to argue the case in the Court of Appeals and they haven’t appeared here.
Now, if the order of the Board was wrong, we come to the question of Mr. Justice Whittaker.
Had the Board — had the Court any power to modify the order?
I know of no language more clearer than that found in Sections 10 (e) and (f) of the Act where it gives the Court of Appeals when the case is brought up to them, power to enforce or modify and of enforcing it as modified the order of the Board.
Now, you can say it’s all scripted or asked.
There is no limitation on that power, except if there is any substantial evidence, the courts have to regard the finding of the Board.
In Section 10 (e), you find and that’s where a party brings it up.
In that Section, they cannot raise any question.
The Court cannot consider any question.
It has not been raised before the Board of the agency.
Now, we will not apply it.
We came into the case when we saw this order which would put us out of business and gets them and in the Bowman Tracking Company’s operation.
We then filed a petition to review under 10 (f) which provides that any aggrieved person can petition the Board or the Court for review.
And Section 10 (d) provides that so long as the Board hasn’t filed the record in a Court to ask for enforcement, any person can apply to the Board for them to modify an order.
We came in that way.
And the Board first thought, we will eliminate them because they didn’t take exception in 20 days.
The court below found that we were not a party.
Also, the Board withdrew from that contention and our power under the statute and under the rules and regulations of the Board to petition them for modification was never questioned any further, the stipulation it left, the 20 days in, they had raised that, paragraph (c) was eliminated by later stipulation and by order of the Court.
Now, to my mind, it seems quite clear that where it isn’t on a matter of fact but on a matter of law, the courts have the power to correct the Board.
They have the power to modify and to enforce as modified.
In those cases that they cited under note 15, on page 32 of their brief, where you find every one of those cases, the courts did consider modification and in some, they did modify.
The first time the Board named the teamster — the charging union and we won’t punish you for working with them.
Then, they suggested, add or any other union and the cases put that in.
Then, respondent suggested or refrained from joining, if you want to.
And to put that in, the Board didn’t object to it.
You find that a — then a gradual change.
Now, we didn’t ask the Court to modify the notice.
Mr. Judge Washington said that we didn’t offer a suggestion to the Board.
Well, we didn’t because we hadn’t studied their opinion intently enough to know what to suggest.
We didn’t because they wouldn’t welcome our suggestion.
A counsel stated in the court below on argument when Judge Washington asked him that.
He said, “Well, we might as well face it if they’d suggested that we would’ve paid any attention to it.”
And furthermore, it seems strange to me that if your rights have been violated, that you will forfeit a chance to raise the question unless you suggest to the violator some other way to proceed.
To my mind, there is no such duty to enact rules for the Board.
We told them it was wrong and when the Court asked us what we would suggest, we picked from the language of the Board’s opinion, until the man has the union, has been freely chosen in an atmosphere free of the improper influence.
William J. Brennan, Jr.:
Well, I would suppose, Mr. Harris on the basis of your argument that should be sufficient and the Board may not go beyond that whether the union was complying or non-complying.
Well, that is my feeling, but I don’t (Voice Overlap) —
William J. Brennan, Jr.:
You don’t have to — you don’t have to argue that now.
I state now as I stated in the Board’s Circuit.
I felt that way, but I don’t think I have to take on that thing, And I don’t have to argue for those unions that went the other way.
In our case, we have a — a practical problem due to the facts, due to the changing world where the law is different, the situation is different.
And we say that if this Court as time and again said that the Board must fashion its orders to effectuate the policy of the Act.
The Act says that and you’ve given them flexibility and now, although they are never bound by principle to res judicata, they say, “We want stare decisis and we don’t want to adapt our remedy to the actual situation in the business world.”
And that the case has never been up before any Court, except the Fourth Circuit and this court below, and they both agreed with this that the Court — I mean, that the Board did not have power to write such an order.
It is a new case so far as any arguments ever been made on the point so far as I can find.
I haven’t found any case in any court where this question has been raised.
When it was raised, it’s significant that both courts agree that the order is not proper or it’s not appropriate.
It’s absolutely far on duty, intent and policy of the Act.
Now then, we may — seem to the Board to be obstreperous.
Most people who fight for their rights are not well received by the people with whom they fight.
But if we didn’t fight for our rights, if men want — willing to litigate for their rights, there wouldn’t be any use of me standing up here.
And the President wouldn’t have to go over the entire bar of America to pick out nine intellectual such as yourself to decide questions that men who believe fighting for their rights is a proper practice.
Now, it maybe either in that sense, we are not friendly to the Board but there isn’t anything personal.
I don’t feel that there is any necessity for me to cast aspersions on the Board, for me to throw bricks at anybody.
They made a decision with which we disagree and the court below agreed with us instead of the Board.