National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

PETITIONER:National Labor Relations Board
RESPONDENT:Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
LOCATION:Dry Docks at Reed, WV

DOCKET NO.: 34
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 362 US 274 (1960)
ARGUED: Jan 14, 1960
DECIDED: Mar 28, 1960

Facts of the case

Question

  • Oral Argument – January 14, 1960 (Part 2)
  • Audio Transcription for Oral Argument – January 14, 1960 (Part 2) in National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

    Audio Transcription for Oral Argument – January 14, 1960 (Part 1) in National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

    Earl Warren:

    Number 34, National Labor Relations Board, Petitioner, versus Drivers, Chauffeurs, Helpers, Local Union Number 639, etcetera.

    Mr. Manoli.

    Dominick L. Manoli:

    May it please the Court.

    This case is here on writ of certiorari for the Court of Appeals for the District of Columbia Circuit.

    In general, the case deals with the legality of picketing under the National Labor Relations Act to force an employer to recognize as the bargaining representative of these employees, a union which represents either none of them or only a minority of these employees.

    Section 8 (b) (1) (A) of the Act makes it an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of their rights under Section 7 of the Act.

    Included among these rights is the right of employees to bargain collectively through a representative of their own choosing or to have none at all.

    The question presented in this case is whether a union which pickets to force the employer to recognize it as the bargaining representative of its employees, even though it represents none or only a minority the employees, constitutes restraint and coercion of the employees in the exercise of their statutory rights within the meaning of Section 8 (b) (1) (A).

    Now, let me briefly summarize the facts which give rise to this question.

    In 1953, the Board certified the respondent union as the bargaining representative of some 21 employees of the Curtis Company who worked as warehousemen, truck drivers and furniture finishers.

    The Company is engaged in the retail furniture business.

    Shortly after the union was certified by the Board, it entered into negotiations with the Company with the view to working out a collective bargaining contract, but they were unable to arrive with an agreement.

    The union went out on — called a strike, in which nine of the 21 employees joined.

    The union established picket lines around the Company’s stores, its retail store and the adjoining warehouse where the employees who were involved in this matter worked.

    The Company replaced the nine strikers and continued its operations and the union meanwhile, continued its picketing.

    Some 15 months or so later, in 1955, the Company filed a petition with the Board, asking the Board to hold an election to determine whether the employees wished to be represented by the respondent union.

    The Board held that election and of the 29 votes that were cast in that election, 28 of the votes were against the union and only one for the union.

    The — despite its overwhelming defeat at the polls, the union, nevertheless, continued to picket, this time, only in front of the Company store.

    The Board found that one of the purposes of the union in continuing to picket and I might say that there is really no question about this finding here, the Board found that one of the purposes of the union in continuing to picket after the election was to compel the employer to recognize it as the representative of the employees, despite the fact, despite the fact that these employees had decisively rejected this union as their — as their bargaining representative.

    Charles E. Whittaker:

    And that was finding (Inaudible)

    Dominick L. Manoli:

    Well, no.

    The banners which they said were two kinds, Your Honor.

    Before the election, the banner proclaimed that the Company was on strike and it was unfair to organize labor.

    After the election, the banners were changed.

    One of them read, as I recall it, that the Company was unfair.

    It employed nonunion — nonunion men, working men and the other banner was to the effect that — that they wanted — the union wanted employees to join the union, so that they could enjoy, enjoy union working conditions.

    But the Board found, and as I said, there’s really no challenge here, the Board found that despite whatever the signs may have said or despite the claim of the union that it was not seeking immediate recognition from the employer that the union was in fact, picketing for the purpose of requiring the employer to recognize it, notwithstanding, notwithstanding the fact that these employees had decisively rejected this union as their bargaining representative.

    Now, the Board further found that picketing by a union, which represents either none or only a minority of the employees, to force the employees to accept it as their bargaining representative, constitutes an invasion of the employees’ rights under the statute and constitutes restraint and coercion within the meaning of Section 8 (b) (1) (A).

    The Board accordingly entered an order directing the union to refrain from this conduct.

    The court below disagreed with the Board.The court below took the position that Section 8 (b) (1) (A) of the statute was not intended — was not intended by Congress to reach this kind of picketing.

    Dominick L. Manoli:

    And that accordingly, the Board below set aside the Board’s order.

    I may add in passing, that of the three Circuit Courts that have dealt with this issue, they have split out.

    Two of them including the court below in the Second Circuit had disagreed with the Board.

    The — and the third one which the Fourth Circuit has upheld the Board’s views in this respect.

    Now, before I go on to discuss the considerations which underlie this controversy, I should like to say, a preliminary word concerning the order of my remarks.

    This case arose under the National Labor Relations Act as amended in 1947.

    And the question as I’ve been to — as I’ve indicated, is whether Section 8 (b) (1) (A) of the statute reaches this kind of picketing.

    Now, following the Board decision, as well as the decision of the court below in this case, Congress passed it.

    I’m sure the Court is aware.

    Congress passed the 1959 amendments to the statute and included — included in these amendments is a provision which I’ll merely say in general to state it again.

    The general regulates — regulates organizational and recognition picketing whether it’s by a majority or minority union.

    Now, the Board believes — the Board believes that these amendments do not affect — do not affect its conclusions that it reached in this case and further that they do not affect its order.

    William J. Brennan, Jr.:

    The Board mistaken this however that they’re not relevant?

    Dominick L. Manoli:

    Oh, no, not at all.

    We are — I was going to say.

    We did — we do take the position that they do not affect the conclusions which the Board reached in this case and do not affect its order.

    And that if the Board’s views prevail as to the meaning of Section 8 (b) (1) (A), then its order is entitled to stand.

    Now, I should like to address myself first.

    William J. Brennan, Jr.:

    Well, I — I just want to be clear to the fact.

    Dominick L. Manoli:

    Yes, sir.

    William J. Brennan, Jr.:

    Determining immediately of 8 (b) (1) (A) —

    Dominick L. Manoli:

    Yes.

    William J. Brennan, Jr.:

    — the Board concedes that we’ll have to take into account the 1959 amendments.

    Dominick L. Manoli:

    I think it’s inescapable.

    The —

    Felix Frankfurter:

    And may have to give me a — a preview of what you’re going to argue just to the statement.

    Are you saying that the amendments have left the matter wholly unchanged?

    Are you saying the amendments are neutral or are you saying is anything that points your way or against your way?

    Dominick L. Manoli:

    If I may just briefly summarize —

    Felix Frankfurter:

    Just state — state —

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    — part of is — what your conclusion.

    Dominick L. Manoli:

    One, we will say that the amendments — our position is that the amendments do not impute the Board’s authority to deal with this kind of picketing under Section 8 (b) (1) (A).

    That Congress has not resolved that problem, determine where the Board has that power under 8 (b) (1) (A) or not, by passing the subsequent legislation.

    And our second point with respect to those amendments is that these amendments do not displace the Board’s power to deal with this kind of picketing under Section 8 (b) (1) (A).

    They supplement it and I’ll come to that —

    William J. Brennan, Jr.:

    But this is not to standing to be arguable as to the amendments, in terms would cover the very picketing under the terms.

    Dominick L. Manoli:

    They would.

    That’s right, notwithstanding that.

    Now, as I said, I would — I would like to first address myself to the issue presented by this case in the context of the 1947 amendments.

    Obviously, the Board did not have the power to deal with this thing here under 1947.

    We never reached the issue of what, the subsequent amendments do.

    And secondly then, I would like to address myself to the significance and the impact of the — of the 1959 amendments along the lines that I’ve just suggested to Mr. Justice Frankfurter.

    Now, one of the fundamental policies of the statute is to afford to employees full freedom in the selection of a bargaining representative of their own choosing.

    Section 7 implements this policy and guarantees to employees the right to select a bargaining representative for purpose of collective bargaining or to have none at all.

    The picketing in this case was in defiance of that statutory guarantee for it sought to force upon the employees, a union which it did — did not want.

    Indeed, one which they had decisively rejected in a Board election.

    If the employer had recognized this union and assisted in forcing it upon the unwilling employees, he would have committed an unfair labor practice.

    His action in that respect would have constituted restraint and coercion within the meaning of Section 8 (a) (1) of the statute.

    Now —

    Felix Frankfurter:

    You mean by that that 8 (b) says, I want to get rid of these pickets and therefore, I would recognize the union, that’s what you mean?

    Dominick L. Manoli:

    That’s what I mean.

    Now, is it in the less restraint or coercion, within the meaning of Section 8 (b) (1) (A), on the part of a union to resort to picketing for the purpose of compelling the employees to surrender their right of self-determination and to conscript the assistance of the employer in shaping this illegal objective.

    Section 8 (b) (1) (A), as I have said, makes an unfair labor practice for labor organization to restrain or coerce the employees in the exercise of Section 7 rights, including their right of self-determination.

    The two elements — the two elements of the offense are, one, that the union’s action constitutes restraint and coercion and secondly, that such restraint or coercion cuts in — cuts into to the employees’ right of self-determination.

    Now, I think there can be no question.

    Indeed, I don’t believe that the other side seriously challenges this, that taking Section 8 (b) (1) (A) literally at least, literally, it can be read — it can be read to encompass this kind of picketing, where its purpose is as I have said, to override the employees’ self-determination in these questions of representation.

    Now, the purpose of the picketing was for the union to force itself upon these unwilling employees and the union sought to achieve that objective.

    It sought to achieve that objective by threatening the livelihood of the workers.

    One of the purposes, an obvious purpose of the picketing, of course, was to turn away both customers and suppliers of the Company and to work economic loss upon the Company.

    Dominick L. Manoli:

    And of course, such economic duress — such economic duress, not only — not only tends to force the employer’s hand and to recognize the union which as an — not entitled to recognition, but it also tends — it also tends to force the employees however unwillingly, to forgo their statutory rights and to acquiesce in representation through a union which they do not want.

    Now, it seems to us, Your Honors, there can’t be — that there can’t be a more unequivocal way of restraining or coercing employees in the exercise of their rights than to cause them to fear the disappearance of their jobs.

    Now, nothing in the statutory policy that seems to us justifies — justifies removing this kind of picketing, this kind of economic duress from the reach of Section 8 (b) (1) (A).

    One of the foundations of collective bargaining which the statute has adopted is a national policy, either the employees shall be free to select or reject a bargaining representative without employer restraint or union coercion.

    Now, it seems to us, Your Honors, that this kind of picketing, the economic duress, that was behind this kind of picketing, abridges that right of the employees, their right of self-determination and subverts that national policy.

    Indeed, where as here, you have a Board election and the employees have turned the union down and the union seeks to override the — the subversion — the subversion of the — of the national policies even more flagrant.

    As even far more flagrant, because the union is seeking to override by means of economic pressure, the employees’ deliberate and solemn choice which they have made in the Board election.

    Now, no policy of the statute is — moreover, I might add, as I’ve said before that if the employer were to recognize the union in these circumstances, he too would become — he too would be committing an unfair labor practice.

    No policy of the statute seems to what is served, by permitting picketing which has these consequences.

    It seems to us that in the absence of any legitimate interest, any legitimate competing interest of the contrary and we submit, there is none, there is no reason why Section 8 (b) (1) (A) should not be given unqualified effect to reach this kind of picketing.

    It seems to us that the statutory policy is almost required.

    Now, let me turn, I’ve spoken about the literal language of Section 8 (b) (1) (A) and, of course, I’m fully aware that we don’t stop there.

    Let me turn now to the legislative history of Section 8 (b) (1) (A).

    This history has been set out in full in our brief and I will not attempt to retrace it step by step.

    I’m sure that each side will be able to quote some scripture to its purposes.

    Indeed, one court has recently said that perhaps the legislative history of Section 8 (b) (1) (A) is inconclusive.

    But I believe, Your Honor, that there are three hard and meaningful facts that do emerge — that do emerge from this legislative background of Section 8 (b) (1) (A), which, I think, are significant for our purposes.

    The first of these is that the sponsors of Section 8 (b) (1) (A) intended to impose upon unions, insofar as it was practical, the same kind of restrictions which Section 8 (a) (1) already imposed upon employers, with respect to employer-intrusion upon protected employee interest or rights.

    Section 8 (b) (1) (A) was intended to vest in the Board the same broad power that deal with union restraint or coercion that the Board already possessed with respect to employer restraint or coercion which trenched upon the employees’ rights.

    Now, this — the parallel purpose — the parallel purpose of Section 8 (b) (1) (A) and Section 8 (a) (1), I think, is significant for our purposes.

    An employer who forces upon his employees a union which they do not want, an employer who exerts economic pressure to force the employees to accept an — an unwanted union, he commits an unfair labor practice.

    Such recognition — such or a — such economic duress from the part of the employers is a classic example of restraint and coercion in violation of Section 8 (a) (1) — of the Section 8 (a) (1) provisions.

    Now, the union’s action in this case is the counterpart of that employer action.

    For both types of actions involved, they involve economic pressure for the purpose of achieving the same illegal objective, the denial of the employees of their right of self-determination in these matters.

    Now, it seems to us, that if 8 (b) (1) (A) is to — and 8 (a) (1) are to be given the intended evenhanded application that the sponsors or the — of the sponsors of the — of this — of this provision intended, then there’s no reason for differentiating between economic pressure by a union or economic pressure by an employer, where the purpose of that kind of pressure is to settle the employees, the unwilling employees with a union that they do not want.

    In either case, well, it seems to us, you have restraint or coercion in violation of the statute.

    Now, secondly, the second major — the second fact that I think does emerge form the legislative history which is of some significance is that Senator Taft and Senator Ball, who among the principal sponsors of Section 8 (b) (1) (A), made it clear that they intended 8 (b) (1) (A) to reach, both stranger and minority picketing for the purpose of compelling an employer to grant them recognition.

    They illustrated the reach of Section 8 (b) (1) (A), during the debates as follows, Senator Taft said —

    What page is this?

    Dominick L. Manoli:

    I’m now — I’m now reading from page 29 of our brief, Your Honor, where it’s quoted.

    Dominick L. Manoli:

    As the union went to a plant in California and said, “We want to organize your employees, call them in and tell them to join our union.”

    The employer said, “We have not any control over our employees.

    We cannot tell them under the Act, under National Labor Relations Act — we cannot tell them under the National Labor Relations Act.”

    They said, “If you don’t, we will picket your plant,” and they did picket it and closed it down for a couple of months.

    And then we go on to say, he concluded with a statement that there are plenty of methods of coercion, short of actual physical violence.

    And again Senator Ball, who was as I say one of the principal sponsors of this legislation, he illustrated the reach of Section 8 (b) (1) (A) with this example, and again, the same page, Your Honors, of our brief.

    He said that, “That was intended to reach the case where the Teamsters Local 86 had been picketing an establishment, although no members of the union were employed there in an effort to coerce those who were employed there into joining a union, which they did not want to join.”

    Now finally, the third fact — the third fact that I think has significance for us does emerge from this legislative background is this, when Section 8 (b) (1) (A) was being debated on the Senate floor, some misgivings work expressed that perhaps Section 8 (b) (1) (A) might be read to cover peaceful persuasion or peaceful picketing for — peaceful picketing for legitimate purposes.

    Senator Taft assured these — assured these Senators, assured these Senators that 8 (b) (1) (A) was not intended to reach that kind of conduct.

    But nevertheless, the sponsors of the bill, they never wavered — they never wavered from their view — from their view that Section 8 (b) (1) (A) was intended to reach — was intended to be given as broad, a meaning, as broad as interpretation as Section 8 (a) (1) had received in protecting employers against intrusion with respect to their rights through employer coercion or through union restraint.

    Now, I think finally, it is instructed, it is instructed to look to the circumstances which gave birth to Section 8 (b) (1) (A).

    The House bill, though which had passed the House, contained some very broad provisions concerning organizational and — and recognition of picketing.

    The House bill prohibited picketing, where there was no dispute between the employer and his employees.

    It prohibited picketing to compel an employer to recognize the union, which had not been certified by the Board and finally, it prohibited picketing to compel an employer to violate any law.

    The Senate bill, the bill which had been reported of the Senate Committee, contained no similar provisions.

    The only provision that the Senate bill contained in this area was the provision which subsequently — eventually became Section 8 (b) (4) (C) of the statute.

    And 8 (b) (4) (C) makes an unfair labor practice to engage in picketing for the purpose of displacing, for the purpose of displacing a union which has been certified by the Board.

    Now, when the Senate bill was reported out of the Committee, five members of the Committee expressed concern that the Senate bill didn’t — has against the — as reported out the Committee, did not go far enough — did not go far enough in regulating union organizational activity and particularly as the sponsor stated, did not go far enough in regulating minority or stranger picketing for the purposes of obtaining recognition.

    Now, it was to remedy that deficiency, it was to remedy that deficiency that 8 (b) (1) (A), that 8 (b) (1) (A) was proposed and in part, the intention was to bring into the Senate bill, to bring into the Senate bill albeit in a somewhat modified form, some of the restrictions of the House bill contained with respect to picketing.

    And it was with this understanding, it was with this understanding that the Conference Committee, the Conference adopted the bill — approved the bill and of course, then the bill was passed.

    You mean to say 8 (b) (4) (C) can be regarded as the resolution of the conflicting views.

    Dominick L. Manoli:

    No, Your Honor.

    You will find — I will answer that — I will answer in just a few moments, if I may finish at this point because I was just coming to it.

    Now, to conclude the legislative history, we think, we think that taking the legislative history as a whole, that it supports and then a strong support to the Board’s interpretation of Section 8 (b) (1) (A).

    Now, in essence, this is our affirmative case, so I will now turn to the case on the other side.

    The other side contends that there are specific provisions, 8 (b) (4) (C) among them, in the statute which evidenced a congressional intention not to reach this kind of picketing under Section 8 (b) (1) (A).

    And, of course, the principal source of this argument is Section 8 (b) (4) (C), which, as I have stated, Section 8 (b) (4) (C) makes an unfair labor practice for a union to picket for the purpose of displacing a certified union.

    Now, the argument is that the inference to be drawn, the inference from — to be drawn from the specific regulation of recognition picketing is that Congress, as a matter of deliberate choice, refrained from imposing any further restrictions upon other types of recognition picketing.

    William J. Brennan, Jr.:

    Well, tell me, Mr. Manoli, do you think that 8 (b) (1) (A) is ambiguous to be brought about to cover Section 8 (b) (4) (C) covers?

    Dominick L. Manoli:

    No.

    Dominick L. Manoli:

    We think that there, doesn’t make them redundant.

    And we think there’s room for both of them to play.

    And if I may finish my answer to Mr. Justice Harlan, I will come to that next.

    The — now, as I said, the argument is that 8 (b) (4) (C) evidence as a — delivered in purpose on the part of Congress to have only this restriction upon recognitional picketing.

    Now, it seems to us, Your honor, that in view of the circumstances which I have stated that gave birth to Section 8 (b) (1) (A) that this inference is not a proper one.

    And as I’ve already indicated, Section 8 (b) (1) (A) was inserted in the statute because of misgivings or concern expressed by the Committee members that the bill which already included Section 8 (b) (4) (C), did not go far enough in — in the regulation, in the regulation of organizational activities on the part of the union.

    Now, in view of those circumstances, it seems to me — it seems to us that Congress was intending to add to supplement 8 (b) (4) (C) and to include within the — with — within Section 8 (b) (1) (A), minority or stranger picketing for personal recognition where there was no certification in the picture.

    Now, the argument is —

    Felix Frankfurter:

    When did (C) come into the statute?

    Dominick L. Manoli:

    It came in, in the — in the Senate bill, Your Honor.

    In the Senate bill which was the bill which was reported out of the Senate Committee.

    After the Senate bill Committee containing 8 (b) (4) (C) was reported, then on the floor of the Senate, the five Committee members proposed 8 (b) (1) (A).

    Felix Frankfurter:

    And do you happen to know as a matter of chronology whether the quotations that you gave us from Senator Taft, whether it fitted in as to the cause —

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    (Voice Overlap) —

    Dominick L. Manoli:

    They were early in — they — the early stages of the discussion on 8 (b) — on 8 (b) (1) (A).

    But as I indicated, Your Honor, while there were some concern expressed as the reach of Section 8 (b) (1) (A) that it might reach peaceful persuasion or peaceful picketing for legitimate purposes to sponsor this bill, never waiver — never waivered from their view that Section 8 (b) (1) (A) was to have the same broad interpretation that 8 (a) (1) had had to reach economic duress, that cut into the employees’ rights.

    Felix Frankfurter:

    8 (b) (1) (B) came in after (C), was later than the (C) provision?

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    And was later — and these utterances by Senator Taft?

    Dominick L. Manoli:

    No, no, no.

    These utterances were in connection with the Section 8 (b) (1) (A) proposal.

    Felix Frankfurter:

    Well, then I misconveyed my question.

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    These utterances were made by Senator Taft after (C) was already in the proposed bill.

    Dominick L. Manoli:

    Yes, sir.

    Felix Frankfurter:

    (Voice Overlap) —

    Dominick L. Manoli:

    That’s correct.

    Now, turning to Mr. Justice Brennan’s question that doesn’t — this interpretation to make 8 (b) in effect, I think what Your Honor is saying as the court below did.

    William J. Brennan, Jr.:

    Was (C) necessary?

    Dominick L. Manoli:

    Doesn’t make 8 (b) (4) (C) redundant, if we had this.

    We don’t think it does.

    There maybe some minimal overlapping, I think, but we think that there is room.

    The Board’s interpretation of 8 (b) (1) (A) gives both sections the room to play.

    Section 8 (b) (4) (C) applies only — only where you have a Board certification of the union and in it applies even though the union that is seeking recognition is a majority union as long as that — that certification, picketing by a union whether it’d be minority or majority, is a violation of that — of that Section.

    Section 8 (b) (1) (A) as interpreted by the Board applies where there is no certification, where there is no certification and it reaches minority picketing for the purpose of compelling the employers to have a union which they don’t want.

    So it seems to us that the interpretation which the Board has placed upon 8 (b) (1) (A) does not displace 8 (b) (4) (C), but there is room —

    William J. Brennan, Jr.:

    I get the (C) situation as the Board applies on the property charged him and that also involving 8 (b) (1) (A)?

    Dominick L. Manoli:

    I don’t recall any case where we have concerned ours — the Board is concerned for ourselves — itself with 8 (b) (1) (A) and an 8 (b) (4) (C) situation.

    I don’t know of any.

    Felix Frankfurter:

    Well, are you suggesting — do I understand you to say that (C), if I may use that.

    Dominick L. Manoli:

    Yes, sir.

    Felix Frankfurter:

    (C) relates displacing a recognized union.

    Dominick L. Manoli:

    A certified union.

    Felix Frankfurter:

    Well, what a certified (Voice Overlap) —

    Dominick L. Manoli:

    That’s right.

    Felix Frankfurter:

    — whereas the — what you are arguing is in relation to a desire to become — of majority to become a recognized —

    Dominick L. Manoli:

    There were — there is no — where there is no certified union in the picture.

    William J. Brennan, Jr.:

    In other words, we might have a situation where you have to certify it and yet in fact, another union who is representative of the — that charges the employees.

    Dominick L. Manoli:

    That’s right.

    And 8 (b) (4) (C) would cover that kind of picketing.

    Felix Frankfurter:

    Or might the — both as Justice Brennan suggests or might be a rival union?

    Dominick L. Manoli:

    It might be a rival union.

    That — that’s right.

    8 (b) (4) (C) would — does not permit picketing by another union, minority or majority, where there is a Board certification.

    Felix Frankfurter:

    I raised that already a legal voice for the men.

    Dominick L. Manoli:

    Yes.

    That’s right.

    Now, the further argument is made, Your Honors, that Section 13, Section 13 of the statute also militates against the Board’s reading of Section 8 (b) (1) (A).

    Section 13 of the statute provides that the right to strike shall not be impaired or diminished except as specifically provided in the statute.

    Dominick L. Manoli:

    Now, the argument is made on this phase of the case is that picketing is a base of strike action, that Section 8 (b) (1) (A) does not specifically cover picketing and that therefore, the immunity that Section 13 gives to strike and by hypothesis to picketing, cannot be, cannot be denied under — under Section 8 (b) (1) (A).

    It seems to us that this argument is, first, question-begging and in any event, unsound.

    Section 8 (b) (1) (A) is a specific provision of this statute and if this kind of picketing can fairly, can fairly be read into Section — into Section 8 (b) (1) (A), then it is a specific impairment of the right to picket.

    And Section 13 does not serve to protect it against that specific impairment.

    Now, I can illustrate this by other sections of the statute.

    Section 8 (b) (2), for example, makes an unfair labor practice for a union to cause or to attempt to cause an employer to discriminate against his employees in violation of the statute.

    It says nothing.

    There’s nothing about a strike action or picketing and yet no one has ever suggested that 8 (b) (2) would not reach a strike or picketing for the purpose of compelling an employer to discriminate against his employees.

    Or take Section 8 (b) (1) (A) itself, Section 8 (b) (1) (A) itself doesn’t say any at all about mass picketing or mass strikes or violent strikes and yet, here again, no one has suggested that Section 13 would protect that kind of a thing because there was no specific provision in Section 8 (b) (1) (A) covering that sort of — that sort of activity.

    Now, finally —

    Felix Frankfurter:

    (Voice Overlap) you say specifically provided —

    Dominick L. Manoli:

    Yes, sir.

    Felix Frankfurter:

    — that Section 13 doesn’t mean as much as you spelled in (Inaudible)

    Dominick L. Manoli:

    Exactly.

    And then I might add that the kind of strikes that Congress sought to protect were strikes for legitimate purposes, not strikes for illegal objects so that Section 13 wouldn’t apply this kind of thing anyway.

    Charles E. Whittaker:

    What about the (Inaudible) is coercion of any form means in violation of their rights to call any position to — violates (Inaudible)

    Dominick L. Manoli:

    Right.

    Charles E. Whittaker:

    And wouldn’t have the (Inaudible) provisions.

    Dominick L. Manoli:

    Yes, sir.

    Charles E. Whittaker:

    Has tried to accomplish what the Act (Inaudible)

    Dominick L. Manoli:

    That’s right.

    Now — yes, Mr. Justice Brennan.

    William J. Brennan, Jr.:

    No, that’s all right.

    Dominick L. Manoli:

    Yes.

    [Laughs]

    William J. Brennan, Jr.:

    Thank you.

    Hugo L. Black:

    When did the Board first applied 8 (b) (Inaudible)

    Dominick L. Manoli:

    This was the first case, Your Honor, in which the Board has dealt specifically — has dealt specifically with record with — with — shall I call it for shorthand for minority or a stranger union picketing for the purposes of obtaining recognition.

    Now, it is true —

    Hugo L. Black:

    Had it been asked to (Inaudible)

    Dominick L. Manoli:

    It is true, Your Honor, that in 1948, the Board had the so-called Perry Norvell case.

    Now, the Perry Norvell case did not, did not present this question of a minority union or a stranger union seeking to compel an employer to recognize it as a bargaining representative of the employees, however, however, the Board did say in that case and, of course, this is heavily relied on by the other side, the Board did say in that case that Section 8 (b) (1) (A) was intended to reach union conduct such as, violence, mass picketing or union with threats of reprisal — of direct economic harm and that it was not intended necessarily, not intended necessarily to reach, to reach union conduct which was peaceful and — and coercive even though such conduct had an illegal purpose, an illegal object.

    Now, as I’ve said —

    Hugo L. Black:

    (Voice Overlap) opinion brought.

    Dominick L. Manoli:

    Your Honor, I don’t believe it was, I don’t recall.

    I — I was checking the case a few days ago, but I don’t recall it as unanimous or not.

    My recollection is there was one dissent, but I’m not certain at the moment.

    Hugo L. Black:

    There would have been any case, before this one or indicates as the Board upheld this decision.

    Dominick L. Manoli:

    We have none, Your Honor.

    We have this language.

    The Board has had —

    Hugo L. Black:

    When was this one decided?

    Dominick L. Manoli:

    1957 — 1957.

    Hugo L. Black:

    And when was the Act passed?

    Dominick L. Manoli:

    1947.

    Perry Norvell came a year — approximately a year and a half or so after the 1947 amendments were passed.

    Hugo L. Black:

    I assume there had been efforts to get the Board to pass this (Inaudible)

    Dominick L. Manoli:

    There may have been charges filed, Your Honor.

    Charges filed with the general counsel, but none of these cases came to the Board.

    Apparently, I think it must be said in all candor, in all candor that the general counsel, apparently between Perry Norvell and this case, that the general counsel has read the Perry Norvell case to mean, to mean that 8 (b) (1) (A) did not reach this type of conduct.

    So, the Board never had occasion, never had occasion to —

    Hugo L. Black:

    What about the Board in Perry Novell case?

    Dominick L. Manoli:

    Well, there was the N.M.U case, but that, Your Honor, while the Board dealt with 8 (b) (1) (A), that involved a strike on the part of a union —

    Hugo L. Black:

    I’m just (Inaudible) what efforts have been made through the years to get this done, either the attorney for the Board or anyone else.

    Dominick L. Manoli:

    The Perry Norvell case is the — was the — or the one, the first cases that came, that came to the Board, dealing with 8 (b) (1) (A) and whether 8 (b) (1) (A) reached, reached peaceful union conduct which was coercive and had an, and had an illegal objective.

    That was one of the first cases to reach the Board, after the 1947 amendments were passed.

    And in that case, as I have said, the Board said that, 8 (b) (1) (A) did not reach union conduct which was coercive and peaceful, even though, even though it had an illegal object.

    Hugo L. Black:

    And that’s what they said, what did they hold?

    Dominick L. Manoli:

    That’s what they held.

    Hugo L. Black:

    That’s what they held.

    Dominick L. Manoli:

    That’s what they held.

    Now —

    Felix Frankfurter:

    I thought, you said the question was — I thought you indicated that the case that you present this situation that they talked to.

    Dominick L. Manoli:

    That’s right.

    It did not present this case.

    There was a case where a group of workers —

    Felix Frankfurter:

    I understood Justice Black’s further questioning of you to lead you to say that the Board held this.

    Dominick L. Manoli:

    Well, when I say the Board —

    Felix Frankfurter:

    Well now, I believe — I just want to know whether there was any.

    Has there been a decision of the Board, apart from what you said that they say in which they dealt with this problem?

    Dominick L. Manoli:

    With my — with a — a demand for recognition by a minority union?

    Felix Frankfurter:

    Yes.

    Dominick L. Manoli:

    This is the first case, Your Honor, in which they have specifically —

    Felix Frankfurter:

    (Voice Overlap) —

    Dominick L. Manoli:

    — dealt with that issue.

    Felix Frankfurter:

    I understood your answer to Justice Black’s question.

    The matter had or as I did not understand your answer.

    Did it or did it not come before the Court — the Board and then the Board take action?

    Or did you indicate as I heard you that in view of the ruling of the general counsel has never came before the Board?

    Dominick L. Manoli:

    Let me rephrase just a bit.

    Felix Frankfurter:

    (Voice Overlap) —

    Dominick L. Manoli:

    Sorry —

    Felix Frankfurter:

    — I didn’t understand.

    Dominick L. Manoli:

    — and make — make myself clear.

    In the Perry Norvell case, the Board — there was a situation there where the employees were striking, were striking to displace a union which was being recognized by the employer.

    And during the life of the contract, they’d simply —

    Hugo L. Black:

    Never thought an illegal purpose.

    Dominick L. Manoli:

    They — they wanted to take over and presumably in seeking to take over, whether minority or majority doesn’t appear in that case, Your Honor.

    Well, even —

    Hugo L. Black:

    Was that for an illegal purpose?

    Dominick L. Manoli:

    For an illegal purpose.

    That’s right.

    Now, the Board addressed itself to the meaning of 8 (b) (1) (A) in that case and it said, “It doesn’t reach this kind of conduct.”

    But the Board there was not faced, was not faced with the specific issue of this case until this case came along.

    Now —

    Hugo L. Black:

    You mean for the illegal purpose, what you call the illegal purpose of — it’s by the —

    Dominick L. Manoli:

    This kind of illegal purpose.

    Hugo L. Black:

    — recognition when they didn’t have a minority or majority?

    Dominick L. Manoli:

    That’s right.

    Hugo L. Black:

    But the practice was over through the years whether both — where the counsel that —

    Dominick L. Manoli:

    The issue —

    Hugo L. Black:

    — such would not violate this Section.

    Dominick L. Manoli:

    The specific issue was not brought to the Board and it was not until —

    Hugo L. Black:

    But what was the practice is?

    How do you bring them?

    I thought the counsel had a lot to do with it, maybe I’m wrong?

    Dominick L. Manoli:

    Well, the way its done, Your Honor, is someone comes in and files a charge with the general counsel.

    Then the general counsel determines whether he will issue a complaint.

    If he decides not to issue a complaint on it, the matter never gets to the Board, the matter never gets to the Board.

    Hugo L. Black:

    And even those years, that he, that’s the position he took?

    Dominick L. Manoli:

    That was his reading of Perry Norvell that it didn’t —

    Hugo L. Black:

    That was — that was in practice, was it not?

    Dominick L. Manoli:

    Yes.

    Hugo L. Black:

    During those years?

    Dominick L. Manoli:

    That’s right.

    Felix Frankfurter:

    Did the Board initiate — suppose the Board — did the Board know about the rulings of general counsel?

    Dominick L. Manoli:

    Oh, it — some — some matches of the general counsel where he didn’t refuse to issue a complaint in some cases, is officially noted.

    They are aware of it, but the Board can’t do anything about it.

    Felix Frankfurter:

    If the Board legally can’t do anything about it.

    Dominick L. Manoli:

    That’s right.

    Felix Frankfurter:

    He is the initiating prosecutorial or — or a complaining body?

    Dominick L. Manoli:

    Exactly.

    Felix Frankfurter:

    He doesn’t issue a complaint?

    He can’t get before — before the Board?

    Dominick L. Manoli:

    That’s right.

    And —

    Hugo L. Black:

    Is he on the Civil Service?

    Dominick L. Manoli:

    Pardon me?

    Hugo L. Black:

    Is he on the Civil Service?

    Dominick L. Manoli:

    He is the presidential appointee, Your Honor.

    The —

    Felix Frankfurter:

    That’s the purpose — that continues to be the situation?

    Dominick L. Manoli:

    That is the situation, yes.

    Felix Frankfurter:

    But as has the —

    Dominick L. Manoli:

    The general counsel has —

    Felix Frankfurter:

    (Voice Overlap) about as whether he should be an independent problem in that way, hasn’t it?

    Dominick L. Manoli:

    Oh, Yes.

    Yes, couldn’t quite debate on it.

    Earl Warren:

    How many general counsels have they had, since —

    Dominick L. Manoli:

    Taft-Hartley?

    Prior to Taft-Hartley, Your Honor.

    There was not a division between the general counsel and the Board.

    Earl Warren:

    Yes.

    Dominick L. Manoli:

    There was one agent —

    Earl Warren:

    I don’t want to insist that that’s all.

    Dominick L. Manoli:

    But since Taft-Hartley — one about four — four — four with the present incumbent.

    And if I may illustrate this just a little bit, I don’t want to use up my time, but for example, in the “hot cargo” cases which this Court decided.

    Now, the Board at one time held it doesn’t show, then, of course, the matter could have rested there.

    The general counsel is seen fit and never issued another complaint.

    But yet, the whole — because of the nature of the problem, the general counsel felt that it was appropriate to bring the matter to the attention of the — of the Board and issued the complaints in order to that.

    Dominick L. Manoli:

    And that’s happened here.

    And it seems to us, Your Honor, that where you have a statute, where you have a statute which is phrased in such a broad and general terms as 8 (b) (1) (A) is, with restrain or coercion, that the Board is entitled, is entitled to reexamine the statute of this kind of general language and its legislative origin in the light of its experience and the insights that it gains from that experience.

    Now, I’ve already touched upon the Perry Norvell case in which they say the other side and places a great deal of reliance and I want to finish this and then I’ll get to the 1959 amendments.

    I want to finish this by calling — by saying a word about the so called — with the report of the so called, “watchdog committee.”

    The watchdog committee, as is colloquially known, was set up by the 19 — by Congress to oversee — oversee the operation of the 1947 amendments to the statute.

    Now, the watchdog committee’s report after citing the Board’s decision in Perry Norvell — after citing the Board’s decision in Perry Norvell said this and I’m quoting now from page 51 of our brief, Your Honor.

    This is a quotation from the — from the report of the watchdog committee.

    They said, “Present law, in no way, limits the primary strike for recognition except in the face of another union certification.

    A labor organization may lose an election and which it was the only union on the ballot and the next day call a legal strike to force the employer to recognize it as a bargaining agent for the — those employees who have just rejected it.”

    I don’t know, what this sentence means, Your Honor.

    It may mean on the one hand that this was the Committee’s understanding of what Congress intended, of what Congress intended with Section 8 (b) (1) (A).

    On the other hand, it seems to us, it seems to us more likely that this is merely a restatement, a restatement of what the Committee thought that the Board had held as to the meaning —

    Hugo L. Black:

    Or the — how do you get there?

    Dominick L. Manoli:

    Pardon me?

    Hugo L. Black:

    I — I don’t understand the great significance of it but I don’t see how you quite read it that way?

    Dominick L. Manoli:

    Because, Your Honor, I don’t have the full quotation here.

    But in the full quotation, it’s preceded by a reference to the Perry Norvell case and as I say —

    Hugo L. Black:

    Whether this report criticize this statement, criticized this action or this opinion.

    Dominick L. Manoli:

    It didn’t say anything at all.

    It just has this full statement after, quoting or after citing Perry Norvell.

    And as I say, it is hard to tell whether this is merely the Committee’s understanding of what Congress intended or whether this is merely the Committee’s restatement.

    Hugo L. Black:

    Who’d it report it to?

    Dominick L. Manoli:

    This was reported to Congress.

    Hugo L. Black:

    For what purpose?

    Dominick L. Manoli:

    This Committee, Your Honor, was set up, was set up to oversee the operation of the 1947 amendments and to report back to Congress to see how it was working and on the basis of which, Congress might or might not want to make some adjustments or amendments in the law.

    Felix Frankfurter:

    It does this annually, doesn’t it?

    Dominick L. Manoli:

    Pardon me?

    Felix Frankfurter:

    Does this annually, doesn’t it, or more or less?

    Dominick L. Manoli:

    First year, Your Honor, the first year, no.

    Felix Frankfurter:

    Is it out of the Commission?

    Dominick L. Manoli:

    Yes, sir.

    Now, but whatever this statement means — whatever the statement means, it seems to us that we cannot place a great deal of reliance upon it as an index, as an index to the intent of the 1947 Congress when it passed 8 (b) (1) (A) —

    Hugo L. Black:

    On what —

    Dominick L. Manoli:

    — because —

    Hugo L. Black:

    Why not?

    And who was this watchdog committee?

    Dominick L. Manoli:

    Pardon me?

    Hugo L. Black:

    I said who was this watchdog committee?

    It made this report.

    Dominick L. Manoli:

    They were composed of various —

    Hugo L. Black:

    Have you got the list in the —

    Felix Frankfurter:

    Members of both houses (Voice Overlap) —

    Dominick L. Manoli:

    Member of both houses, I’ve —

    Hugo L. Black:

    You’ve just been quoting to us Senators Taft and Ball’s report now, as to — to show the meaning of the bill.

    Dominick L. Manoli:

    Yes.

    Hugo L. Black:

    Were they on this?

    Dominick L. Manoli:

    Senator Ball and Taft were on — were on the Committee, that’s right.

    Now, whatever the meaning of this sentence is, it seems to us that we can’t rely upon it too heavily because this report, this report did not issue until 18 months after Congress passed the 1947 amendments.

    And indeed, this Court has set, that this report is no part of the legislative history of the 1947 amendments.

    Now, this brings me to the 1959 amendments.

    The Section 8 (b) (7) of these amendments adds a new unfair labor practice to the statute.

    It makes it an unfair labor practice for a union, for in a none, a none certified union, a none certified union, whether it’s a majority union or a minority union to pick — to force the — or to force or require the employer to recognize it as a bargaining representative of the employees or to force or require the employees, force or require the employees to join it.

    One, where the employer is already recognizing legally, legally recognizing another union.

    Two, within 12 months of a Board election and three, where it needed these two situations prevail from a period not to exceed — for a period not to exceed 30 days unless — unless within that period, a representation petition for an election has been filed with the Board.

    Now, this provision, as Mr. Justice Brennan pointed out earlier, this provision would’ve covered the picketing in this case.

    Now, I think that this new amendments suggest for several lines of thinking.

    The first is that they evidence the congressional notion that the Board did not have the power under Section 8 (b) (1) (A) to deal with minority picketing as it has in this case.

    And that Congress now, for the first time, has supplied that deficiency.

    A second line of thought is that Congress has not attempted to determine whether or not, the Board had this power to regulate minority picketing for recognition under 8 (b) (1) (A) but now, has sought to — has displaced whatever power the Board may have had under 8 (b) (1) (A), has displaced it and for — now has — and Section 8 (b) (1) — 8 (b) (7) provides the sole and exclusive method for regulating this kind of conduct.

    Potter Stewart:

    At the time 8 (b) (7) was enacted last summer, suppose the state of the law on this subject.

    Potter Stewart:

    This case of course had been decided by the Court of Appeals.

    Dominick L. Manoli:

    Yes.

    Potter Stewart:

    And you said there were two other Courts of Appeals decisions —

    Dominick L. Manoli:

    There were —

    Potter Stewart:

    — in conflict (Voice Overlap) —

    Dominick L. Manoli:

    — three altogether.

    Potter Stewart:

    Yes, two others.

    Dominick L. Manoli:

    And, of course, there are — or — either were three rather, but in one of them, in the Ninth Circuit case, in the Alloy case which is presently pending before this Court, the Court did not deal with the picketing aspect of the case, it dealt with some other aspect of the case involving black listed, but those were the three cases when 8 (b) (7) was —

    Potter Stewart:

    Granted.

    Dominick L. Manoli:

    — was adopted.

    Potter Stewart:

    And — and considered.

    Dominick L. Manoli:

    Curtis in the court below or Sullivan or the Rubber Workers in the Fourth Circuit and the Alloy (Voice Overlap) —

    Potter Stewart:

    So the law was unclear, in other words.

    Dominick L. Manoli:

    That’s right.

    That’s the point that I was bringing up.

    Potter Stewart:

    Granting conflict,

    William J. Brennan, Jr.:

    Were they discussed in (Inaudible)

    Dominick L. Manoli:

    Yes.

    William J. Brennan, Jr.:

    (Inaudible)

    Dominick L. Manoli:

    Yes, they were.

    Now —

    Felix Frankfurter:

    What’s the name of the Second Circuit case?

    Dominick L. Manoli:

    I’m sorry, sir.

    Felix Frankfurter:

    What is the name of the Second Circuit case?

    Dominick L. Manoli:

    I have it here somewhere.

    Felix Frankfurter:

    Don’t bother — don’t bother.

    (Inaudible)

    Dominick L. Manoli:

    Alling — Alling & Cory —

    Hugo L. Black:

    Oh, yes.

    Dominick L. Manoli:

    That’s the name of the company, but I would say union.

    Dominick L. Manoli:

    I have not forgotten the name of the union.

    Felix Frankfurter:

    All right, Teamsters.

    Dominick L. Manoli:

    The Teamsters.

    That — that’s right.

    Now, I said there were several lines of — thinking about the effect of 8 (b) (7) and I wanted to finish the third one which is ours.

    [Laughs]

    And that is that again, Congress has not attempted — it did not attempt to impugn the Board’s power to deal with this thing here under 8 (b) (1) (A), but that it has passed 8 (b) (7) — 8 (b) (7) for the purpose of supplementing, supplementing the Board’s power, supplementing and enlarging.

    Hugo L. Black:

    It wanted to supplement it, why didn’t it say so, why didn’t it include that?

    Dominick L. Manoli:

    Well, they’ve supplemented, Your Honor, but — for this reason that 8 (b) (7) covers more than minority picketing for recognition.

    It covers picketing by either a majority or minority —

    Hugo L. Black:

    Does it — does it cover this, what they passed?

    Dominick L. Manoli:

    It would have covered this situation, that’s —

    Hugo L. Black:

    Does it cover?

    Dominick L. Manoli:

    Pardon me?

    Hugo L. Black:

    Does it pass?

    Does it cover?

    Dominick L. Manoli:

    It would’ve covered this situation as it passed —

    Hugo L. Black:

    (Voice Overlap) —

    Dominick L. Manoli:

    — that’s right.

    Hugo L. Black:

    And it didn’t pass.

    Dominick L. Manoli:

    Oh, yes.

    They passed this (Voice Overlap) —

    Hugo L. Black:

    Well, does it cover it then now for a new situation?

    Dominick L. Manoli:

    If — yes.

    If the — if the — the union here was picketing within 12 months of the Board election which —

    Hugo L. Black:

    That’s right.

    Dominick L. Manoli:

    And if their charge had been filed then under 8 (b) (7), this would have covered it.

    Earl Warren:

    We’ll recess now.

    Hugo L. Black:

    There will be a certain time.

    Dominick L. Manoli:

    Pardon?