National Labor Relations Board v. General Motors Corporation

PETITIONER:National Labor Relations Board
RESPONDENT:General Motors Corporation
LOCATION:Clauson’s Inn

DOCKET NO.: 404
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 373 US 734 (1963)
ARGUED: Apr 18, 1963
DECIDED: Jun 03, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1963 in National Labor Relations Board v. General Motors Corporation

Earl Warren:

Number 404, National Labor Relations Board, Petitioner, versus General Motors Corporation.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

This is a Labor Board case here on certiorari to the Court of Appeals for the Sixth Circuit.

The question presented is whether an employer and a labor union representing its employees may without violating the National Labor Relations Act execute a collective bargaining agreement which leaves each employee free to join the union or not as he chooses, but which requires every employee as a condition of employment to pay the union a sum or sums equivalent to its initiation fee and periodic dues.

Such a contract is called the “agency shop”.

It contrasts with the pure union shop and that the union shop in its pure form required membership as a condition of employment.

This, I say, does not require membership but requires merely the payment of sums equivalent to those that — that union members would pay.

Potter Stewart:

It would be fair to say that it requires all the burdens of membership if it confers not all the benefits of membership.

Archibald Cox:

No, I don’t think that would be fair to say, as I shall develop a little later in my argument, it’s entirely clear under this proposal and under the existing General Motors UAW contract that anyone who pays the money is entitled, if he alleged that it’s entirely his right in his free election to all the benefits of membership.

So that I think it’s not fair to say that there are any burdens imposed on anyone unless he chooses to suffer the burdens and not have the benefit.

That’s a matter of contract right and it was clearly implicit in the union’s proposal.

Potter Stewart:

I don’t — I still don’t think get your answer.

In other words, you’re saying this is the same as membership.

Archibald Cox:

I’m saying that this is the — well, I’m saying that anyone who offers to pay these sums is entitled to be a member.

And therefore, it seems to me unfair to say that any burdens are put on him without the benefit.

Now, he may wish, and this is the theory of the agency shop, he may wish not to engage in personal association with the union.

He may feel that that requires a surrender of individual liberty of a character which is somewhat different from simply paying a tax, if you will, equivalent contribution, but that is left up to the individual.

The point that I did want to emphasize, Mr. Justice, if you will look at page 101 of the record, the General Motors-UAW contract, down at the very bottom of the page, stipulates the union shall accept into membership each employee covered by this agreement who tenders to the union the periodic dues and the initiation fees.

So that anyone who pays these sums could join the union and have all the privileges of union membership without doing anything more than paying those sums.

And it’s quite clear that that was the nature of the union’s proposal.

So if he has benefits with — has burdens without benefit that is his voluntary surrender of a perfectly clear right, and I don’t think that I simply wouldn’t apply the term burden to that situation.

Byron R. White:

Well, on the case of pension funds, Mr. Solicitor General, do you have to become a member as well as pay these equivalent sums?

Archibald Cox:

Well, the normal collective bargaining pension fund is applicable to all the employees in the union and such funds are common even though there is no union shop clause or — and no Agency Shop Clause.

There are some unions which operate their own pension funds for members.

Byron R. White:

This is what I’m talking about.

Archibald Cox:

This contract, as I understand it, would not — well this union, I believe, doesn’t operate any such pension fund.

And I don’t think these payments would include any contribution to a pension fund if they’re not entitled to recover.

This would certainly, in any event, I think it’s important to remember how this case comes up, this arises simply on the union proposal that the company bargained for the proposed Agency Shop Clause.

And if there are any details in the exact form of the Agency Shop Clause, it would make a difference.

Archibald Cox:

I don’t think there are.

And surely, the company’s reply should have been not an absolute refusal to negotiate but a sitting down and negotiating for the purpose of ascertaining what — making minor changes or ascertaining just what it was that the union meant.

The question arose for these reasons.

General Motors and the UAW have long had a national union shop agreement, but it is applicable by its terms only in those states in which union, compulsory union membership agreements have not been outlawed by state law.

The agreement was not applicable in Indiana because Indiana does have a law that requires — that prohibits contracts requiring union membership as a condition of employment.

In 1959, an Indiana appellate court held that the state statute did not forbid the agency shop and that the agency shop since it did not require this personal association was lawful under the Indiana statute.

The UAW then requested General Motors to bargain an Agency Shop Clause applicable to the Indiana employees.

General motors categorically refused.

Upon those facts, the Board first held that the refusal was not an unfair labor practice, but later on a motion for reconsideration, changed its view and held that General Motors had committed the unfair labor practice of refusing to bargain collectively.

It ordered General Motors to bargain and that is the order that the Court of Appeals set aside.

You’ll note that the issue thus raised is truly very narrow.

General Motors is guilty of a refusal to bargain if, but only if, the Agency Shop Clause is valid.

The Agency Shop Clause is admittedly valid so far as Indiana law is concerned.

It’s also admittedly invalid, one might say, under the National Labor Relations Act as either discrimination to induce union membership or as interference of coercion with the freedom of choice, unless it falls under the proviso to Section 8 (a) (3) which are the statutes at the last page of our brief, which provides that nothing in the Act or any other federal statute, shall preclude an employer from making an agreement with a labor organization omitting a few words to require as a condition of employment membership therein.

Plainly, the proviso covers the union shop.

The question here is whether it covers the contract much more tolerant than personal liberty and of freedom of choice under the Act which requires each employee to pay the equivalent of the initiation fee and dues, but does not require him in any personal sense to become a member of the labor organization.

The court below —

Potter Stewart:

I still have a little philosophical difficulty in understanding this — understanding why you say that an agency shop is so much more of power than much more liberal — liberal with respect to an individual employee, the employee has to pay exactly the same initiation fee and dues as a member, General.

And then, it’s up to him whether or not he wants to get anything for that money, but that fee — isn’t that it?

Archibald Cox:

He — well, I would put it — I would put it this way.

I suppose not everyone would agree, but certainly there are many people who feel that what you do with your money and what you are obliged to do isn’t the only measure or even the most important measure of your individual liberty.

Potter Stewart:

Well, a member doesn’t have to go to meetings, and he doesn’t have to have his fellow union members to his house for dinner.

This is a — but he does get the union newspaper and that’s it.

Archibald Cox:

Well, I — to the extent, Mr. Justice Stewart, that one does not have any feelings that it makes difference to him whether he must belong to an organization, then I would say there was no difference.

Earl Warren:

Well what’s —

Archibald Cox:

But there are those who feel that there is an important difference.

There are cases.

I recall the Miller case in California —

Potter Stewart:

Yes.

Archibald Cox:

— where it was felt that there was a major difference between these two things.

Archibald Cox:

Now if that’s not an important difference, then it’s not to that extent by more tolerant of is immaterial and I would say they were just the same thing.

William J. Brennan, Jr.:

Well, what you’re saying —

Archibald Cox:

Indeed —

William J. Brennan, Jr.:

— Mr. Solicitor General, I gather, is that there is a difference between compelled association and compelled contribution to the cause of something from which you’ve entered.

Archibald Cox:

Precisely, precisely.

Potter Stewart:

It doesn’t hurt your argument at all to say they’re exactly the same thing.

Archibald Cox:

No.

Potter Stewart:

And you —

Archibald Cox:

No.

Potter Stewart:

— you win your case.

Archibald Cox:

No.

I think, indeed, I shall argue that the union shop as watered down by the Taft-Hartley Act is in every respect, of every significant respect, the same thing.

And this indeed is the first reason on which I argue that the Court of Appeals is wrong, because the true union shop is no longer required under the Taft-Hartley Act.

That is made quite apparent by the second proviso of the Section 8 (a) (3) over on page 46.

The second proviso most of the Court will recall, provides that no employer shall justify any discrimination against the employee for nonmembership in the labor organization.

If he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees, he’s not required to be a member in any other sense, then that he must tender the periodic dues and initiation fees.

Certainly, it’s not so required as a condition of employment.

And the Court pointed this out in the Radio Officers’ case in a passage that’s quoted in our brief.

The point Justice Stewart that I did want to emphasize and perhaps I became a little too enthusiastic was this matter of their being — these employees who don’t join and who are subject to the agency shop being forced to carry additional burdens.

I do think that there’s no merit to that argument because of this clause in the General Motors contract.

The General Motors contract itself dramatizes the insignificance of this purely formal difference between the Union Shop Clause as it exists under the Taft-Hartley Act and the Agency Shop Clause.

If you look again at page 101 of the record, where the General Motors contract is set forth, and I’m looking at paragraph 4 (a), it provides that any employee who is not a member of the union shall become a member of the union within 60 days and so forth, and shall remain a member of the union to the extent of paying an initiation fee and the membership dues.

In other words, the only thing that the clause the General Motors says is valid under the National Labor Relations Act requires nothing more than paying the initiation fee and dues.

What the Agency Shop Clause required is paying a sum equal to the initiation fee and dues, and I suggest with all respect that that certainly tweedledum and tweedledee and nobody has any suggest — ever suggested any meaningful difference between the two.

Our second reason —

Potter Stewart:

It suggests that the Supreme Court of Indiana was wrong, doesn’t it?

Archibald Cox:

No, I think it suggests if counsel will forbid me, that the UAW was wrong and not contending that the present contract is an Agency Shop Clause under Indiana law.

I say wrong, they may have had reasons that I’m not aware of.

All I meant to imply was the argument certainly could be made.

Our second reason for rejecting the argument that was advanced by General Motors and was espoused by the Court of Appeals is that it disregards the office and function of the proviso as revealed both by the structure of the statute and by its legislative history.

Archibald Cox:

If you were to take Section 8 (a) (1) prohibiting interference, coercion, and restraint where the rights are guaranteed in Section 7, and where to take Section 8 (a) (3) prohibiting discrimination that encourages or discourages membership in any labor organization, and where to have stopped there, then of course, all forms of Union Security Clause: union shop, agency shop, closed shop, all the rest of them, would have been unlawful.

Now, the office of the proviso was to say that in collective bargaining, you may go up to a certain point.

We’re going to qualify these rights once the union becomes the bargaining representative up to a certain extent.

And it makes — there’s no earthly reason from the standpoint of that policy to distinguish between the agency shop or the preferential shop or the Maintenance of Membership Clause, or any other form of the union security which is more consonant with the guarantees of freedom of choice and individual liberty than the strict closed shop as it originally was.

Now, this is not just a matter of speculation on my part, the legislative history of the Wagner Act makes it perfectly clear that the purpose of the proviso was to preserve to unions and employers in negotiations with them the status quo with respect to the power of contracting once the union had become the bargaining representative.

The Senate committee report stated that the bill does not interfere with the status quo on this debatable subject, but leaves the way open to such agreements as might now be legally consummated and of course they included even that early, a variety of forms of what we now call ‘Union Security Clauses’ which were then usually loosely referred to as the closed shop whether they were closed shop clauses or not.

Our third reason for rejecting the interpretation below and for supporting the Board’s interpretation is that the interpretation below would defeat while the Board’s interpretation would advance that one of the basic statutory policies, that’s the policy of encouraging the representatives of employees and the employers to work out the issues between them by collective bargaining and by negotiation in an effort to write those contracts which are most consonant with their individual needs and aspiration.

The great virtue of collective bargaining is its flexibility, its adaptability, its creativity.

I think one can say that for half a century there’s been no more explosive issue than the union security question.

What the interpretation below does is to outlaw most, if not all, the variance of the Union Security Clause that have been negotiated and worked out over the past 25 years by employers and unions in collective bargaining and to restrict them to one of the more stringent forms of the Union Security Clause, take it or leave it, without any room for this flexible, adaptable, creative process.

And I emphasize that this would be the consequence not only in Indiana but in every state where we’re now disputing not the Indiana law but the meaning of the National Labor Relations Act.

I would illustrate this point because I think it’s very important, by just four examples of the kind of clauses that have been worked out over the past quarter century which would be outlawed certainly by the logic of the respondent’s argument.

Now take first the so-called Union Preference Clause which was brought into prominence by Louis Brandeis before he became a member of this Court.

That Clause requires an employer to give preference to union members in new hiring.

It does not require any existing employee to become a member of the union as a condition or employment or require any employee to maintain membership after he’s been employed.

It does not even make union membership an absolute requirement for being employed.

Under respondent’s argument, this clause would, so far as I can see, unquestionably be illegal because it does not literally require membership as a condition of employment.

Potter Stewart:

Is this of major contemporary significance as Union Preference Clause?

I asked you because I’ve never heard of it frankly.

Archibald Cox:

I don’t think that there are many industries where it’s used today.

The last that I know of which may retain it in some places, is the — well, let me answer you and then you state why I’m wrong — it’s in the waterfront.

And it’s not of importance today, Mr. Justice Stewart.

That remained true up until 1947.

But of course today you can’t discriminate in hiring because the Taft-Hartley Act outlaws the closed shop.

But remember, we are construing not just the current statute, but a proviso that goes all the way back to the Wagner Act when this was important and the Preferential shop Clause does show this intent of the Congress because the Senate Labor Committee explicitly refer to the preferential shop in saying that one of the purposes of the proviso is to make it possible to negotiate preferential shop centrally.

Potter Stewart:

With that preference, a Union Preference Clause would be illegal under the present law, wouldn’t it?

Archibald Cox:

It would be illegal but not for the reason —

Potter Stewart:

No.

Archibald Cox:

— not for the reason of General Motors.

Potter Stewart:

For both discriminating and hiring (Voice Overlap).

Archibald Cox:

That’s right.

Now my second illustration, of course, is legal under the present law and that’s the Maintenance of Membership Clause developed chiefly during the war under the Offices of the War Labor Board which represents again and compromised because it recognizes that no employee can be compelled to enter into an association not of his choosing.

Also, it gave effect to notions of freedom of contract and responsibility of contract by saying that if you do enter into the relationship, you may bind yourself and indeed must bind yourself for a certain period.

The Maintenance of Membership Clause does not unconditionally require membership of employees as a condition of employment.

It requires only those who have voluntarily chosen to join to be members.

So again, there’s something taken off the literal words in the statute.

Our third illustration is the so-called Harmony Clause.

There have been a number of employers who very genuinely accepted collective bargaining and were desired to encourage the union, believe that the union should be secured to plan but were unwilling to take the final step of telling an employee, “You’re fired unless you will join the union.”

And many of those employers have mediated disputes in this fashion signed the contract requiring the employer to call the employees in and urge them to join the union and tell that the employer believed in the union and in collective bargaining, but left him free not to take that final step.

Now, under the respondent’s interpretation of that kind of clause, clearly, with that kind of activity and the clause calling for it, would clearly be illegal.

Finally, I should point out that also the term ‘agency shop’ is of comparatively reasonable advantage, the substance of what is required by an Agency Shop Clause that goes a good deal for the fact.

The War Labor Board ordered employers and unions to include in their collective bargaining agreements, clauses that stipulated that no employee should be required to be a union member as a condition of employment, but it also stipulated that every employee in the bargaining unit must pay support money where it’s frequently called, equal to the initiation fee and dues as a condition of employment.

Another variant of what’s essentially the same thing was sometimes described as the compulsory check-off without the closed union shop which again required this financial support.

The best known instance was the Rand formula, as it was called, because of an arbitration award by Justice Rand of the Supreme Court of Canada which disposed of a dispute between Ford and the UAW in Canada in that fashion.

These practices are important for several reasons.

First, I think they demonstrate the importance of my point that the policy of the Act requires an interpretation that leaves a room for bargaining rather than constricts the bargaining.

Second, they represent a practical interpretation of the proviso to the Wagner Act during the 12 years between the adoption of the Wagner Act and the enactment of the Taft-Hartley amendments.

And Congress surely acted, indeed we know Congress acted and continued to use the words after the parties in collective bargaining had been negotiating since the contract often under government offices for 10 or 12 years.

Third, we know that the Rand formula and other information of this kind, was in fact called to the attention of the Congress, as I have pointed out in my brief at the time of the Taft-Hartley debates.

Indeed, Senator Taft in discussing the conference report referred to the Rand formula with approval.

And said this is in effect what we have done.

We have set up a system under which the union may get the financial support without the other burdens on employees that are required by the strict union shop the a fortiori the closed shop contract.

The combination of those reasons seems to —

Potter Stewart:

What Senator Taft was saying in effect was we’ve set up in the statute an agency shop —

Archibald Cox:

Yes.

Potter Stewart:

— not a union shop.

Archibald Cox:

Yes, yes, that’s true.

Now, I would like to address myself, if I may, for a few minutes to the relationship between Section 8 (a) (3) and Section 14 (b) because the two used the same phrase and the Court has before it in the next case, the Schermerhorn case, the question whether the States under Section 14 (b) may regulate or prohibit the agency shop as something coming under the phrase “contracts requiring membership in a union as a condition of employment”.

If the Court should decide that the agency shop comes under Section 14 (b), then a fortiori it must reverse the decision below in this case.

The converse is not necessarily true if the Court were to interpret the words requiring union membership therein very strictly, very literally, it might still conclude that that was the definition of the outer line of the exception.

Archibald Cox:

And that if you’re looking at it in terms of the policy of the National Labor Relations Act, unions may go up to the line.

You’re looking at it in terms of what the States may do, you come from the other side and the line would then define.

I point out the possibility the view of the National Labor Relations Board is that the words were used in the same sense, that the words requiring membership in a union as a condition of employment were used somewhat loosely to symbolize all forms of compulsory connection with the union, and that they cover the agency shop in both instance — instances, and indeed, we think we are aided in this respect by the legislative history of Section 14 (b).

Byron R. White:

Your saying under 14 (b) your position indeed is the — the Act which permits the State to regulate anything — any type of union (Voice Overlap)?

Archibald Cox:

No, I was just — well, I was just about to draw what I think is a very important distinction, would you say any type of union security — I might —

Byron R. White:

The three or four examples that you gave —

Archibald Cox:

Yes.

Byron R. White:

— in short of union shop.

Archibald Cox:

The three or four examples that I have given, I would say yes to it, but I do want to emphasize and I think it’s very important as defining the perimeters of this problem.

The difference between what I would call compulsory unionism and a true service fee, I’d like to take a minute, if I may, to illustrate this important difference.

Hugo L. Black:

A true what?

Archibald Cox:

A true service fee.

Now, I’m going to explain what I mean by the two.Let me take it clear instance first.

Suppose that a union operates a — say in the construction industry or along the waterfront, operates a hiring hall and search as it must under the National Labor Relations Act, all employees, members and nonmembers equally, and it requires a fee for everyone who goes as hired through the hall as it charge for the service.

In the case of the union member, it’s a portion of his dues.

In the case of the nonmember, it will have to be a payment of 15 cents, 25 cents, 50 cents, whatever the case may be.

It is a payment of that kind, may I continue just a moment?

Earl Warren:

You may.

You have two minutes.

Archibald Cox:

It’s a payment of that kind that I refer to as a true service fee, something in exchange for considerations rendered.

The Board held in a Homan case, cited in our brief that such a system with the payment of the service fee was consistent with the National Labor Relations Act.

Now, I would say that that kind of contractual arrangement was valid entirely without regard to the proviso of the Section 8 (a) (3) because it’s not interference, coercion, or restraint to stay with the service.

And equally, I would say, that the State may not forbid such a service fee under Section 14 (b).

Then the question arises, well how far do you carry this?

Take in one further illustration.

One of the very heavy financial burdens on a local union is the cause of arbitrating grievances.

Arbitrators charge quite a fee and both sides frequently think that they need lawyers.

A union might conceivably set up sort of an insurance fund.

Everybody who must contribute to the fund as sufficient premium to pay the expected annual or five-year cause of arbitration wouldn’t that also be a service fee at outside the scope of Section 14 (b)?

And I would say, yes, that it would.

Archibald Cox:

It seems to me that it’s like the Homan case.

Now, if you — as you keep adding the things covered by the service fees, you obviously get closer and closer to the union shop and the question would arise where if this distinction has validity, is the line to be drawn between them.

It would seem to me that in terms of the underlying policies, that the line, we’ve spelled this out at more length in our brief, that the line should surely be drawn between those things like the collective bargaining contract, grievance arbitration, the hiring hall, of where the employee gets some direct and immediate benefits.

And those things that unions engage in which may go counter to the political or social or economic views of the employee, political activities, lobbying, legislative activity, and so forth.

I’m suggesting this distinction essentially for two reasons.

I’m not sure that it’s important in any case before the Court.

I’m suggesting it first because it seems to me important to bear the perimeters of the problem in mind.

Because it would be unfortunate if the issue doesn’t have to be decided.

That the Court should say anything that shut off a development along these lines which it seems too many of us at least to offer promising opportunities.

In addition, I want to make it very plain that if the Court should hold that a true service fee, not all the union initiation fees and dues that go to a manyfold variety of activities is beyond state control under Section 14 (b), that that certainly would not require an affirmance of the judgment below that the distinctions between a service fee and the agency shop that I have suggested are certainly valid and operate in that direction even if they do not operate in the other.

Byron R. White:

Mr. Solicitor General, I have one question.

An agency shop or some form of union security along this which would be normally protected by 8 (a) (3) but it is then by state law which you say the State is free to ban Section 14, does the package then become — that remains in an unfair labor practice?

Archibald Cox:

That is an unsettled question, Justice White.

Byron R. White:

But did the Government take any position at this time?

Archibald Cox:

Well, the Board hasn’t ruled on it and it hasn’t been presented and consequently, I don’t feel —

Byron R. White:

So you don’t (Voice Overlap)

Archibald Cox:

— free to state how the Board would rule.

Byron R. White:

And nor whether or not the Board feels that it is the one to determine whether or not the state law does or does not stand.

Archibald Cox:

Well I assume that the Board would follow any state determination upon that question.

Byron R. White:

But in the absence of that.

Archibald Cox:

Well, I think that it is very doubtful that the Board — and I say this rightfully.

I think it is very doubtful that the Board would undertake to act under Section 8 (a) (3) where the contract and the practice pursuant to contract were entirely valid so far as National is always concerned, and it was uncertain what was their status under state law.

In other words, if they were going to take the view at all that the state law was relevant I’m advised that every reason to think that they will do it only where the state law was clear.

And the other question they haven’t decided and therefore I don’t think I should express an opinion on this.

Earl Warren:

If you desire, you may have three minutes to close —

Archibald Cox:

Thank you, Mr. Chief Justice.

Earl Warren:

— Mr. Solicitor General and you may have five additional minutes to argue, Mr. Wagner.

Harry S. Benjamin, Jr.:

Mr. Chief Justice, members of the Court, my name is Harry S. Benjamin, I represent the respondent in this matter, Your Honor.

Earl Warren:

Oh I beg — I beg your pardon, Mr. Benjamin.

Sorry, I was reading at the wrong —

Harry S. Benjamin, Jr.:

I think that I am in substantial agreement with the Solicitor General’s statement of the facts.

I think that if I understand his presentation as to what the issue is, we both see the issue as the same.

Now, two painters with common colors and a common subject can think two pictures which will have various reactions by various people so too to lawyers with a common set of facts and a common issue can present two pictures which will give varying interpretations depending on where one sits.

In this particular case, I believe the Solicitor General with rather broad strokes has presented the picture within a rather large framework.

This picture to us has been out of focus.

We believe that on the basis of the facts and the question presented here and in agreement with the Solicitor, there is a narrow issue.

And so I would like at the outset, if I may, within the narrow framework against which we ask the Court to view our position very briefly state our position.

In this particular matter, a proposal was made to General Motors to enter into an agreement which would condition the continuance of a man’s job upon his payment to a labor organization of a fee.

The fee in this particular case happening to be equivalent to the membership dues and initiation fees which would be charged to members of the union who might otherwise be covered by a union shop agreement.

From the outset, we took the position with respect to that proposal that it was invalid; it was in violation of the National Labor Relations Act as amended.

Our position was that it violated the federal law.

Now, let me turn very quickly to the provisions of the Act which we believe invalidated the proposal.

Frankly, I listen very attentively to hear the Solicitor General make reference to one section of the statute which we believe is the lifeblood of this whole problem, namely, Section 7, but I did not hear reference to that Section.

Section 7 spells out the rights of individuals.

That Section says that an employee may have the right to join, to assist, to form, and otherwise carry on legitimate labor organization activities.

In 1947, Congress saw fit to amend that Section, to provide that employees might refrain from joining, assisting, or contributing to labor organizations.

At the end of the amendment to that Section, it inserted these words after indicating that an individual might refrain from joining, assisting, and so forth except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3).

Now, if I understand the Solicitor General’s argument, he believes that Section 8 (a) (3) confers certain rights and authorizes certain types of agreements but Section 8 (a) (3) is written in the terms of limitation.

The rights insofar as those of individuals are concerned, are set forth in Section 7.

Every employee has the right absolutely to refrain from joining, assisting, or contribute — contributing to a labor organization except, except to the extent that there is an agreement that might be entered into under Section 8 (a) (3) which, by the terms of the statute, might be authorized.

Now, the only agreement that is authorized under Section 8 (a) (3) and the only agreement which will provide some shield for an employer being charged with an unfair labor practice if he should attempt to make an employee pay some money to a labor organization is one which requires membership where the statute clearly says that nothing in this Act shall preclude an employer from making an agreement with the labor organization to require as a condition of employment, membership therein, and then there are other words which are not relevant to the issue here presented.

Now, membership and the word — membership has no unusual meaning.

When Congress amended the statute, it did not deem it necessary to put in a specific definition of membership in that section of the statute which sets forth definitions.

Membership simply means the status which one acquires by having a desire to become associated with an organization in having been admitted to that organization after fulfilling whatever requirements and obligations the organization may impose.

Now, in this particular case, the record is clear that there are a number of employees and it so stipulated on the record.

There are a number of employees who have no desire whatsoever to be bound by the agency shop arrangement, to make any contributions to the union.

As a matter of fact, the record is also clear in this particular case that those employees who might be obligated to make the contributions which this arrangement would require would not even receive the same treatment as those employees who were members.

For example — for example, the record is clear that those employees who would be covered by the agency shop would never have the opportunity to vote on whether they wanted this arrangement.

The record is also clear that they would not have the right or privilege to attend union meetings.

They would not have the right of privilege to vote on certain matters with respect to the disposition of certain union funds.

Harry S. Benjamin, Jr.:

The record is clear that they could not even receive the union newspaper which was the document or means by which people covered by the collective bargaining agreement were advised as to what was taking place between the employer and the employee.

Potter Stewart:

Is the record clear, Mr. Benjamin that — that if they want to they can become members of the union and then get all of these things too as many of them as they choose to do?

Harry S. Benjamin, Jr.:

I believe the record would indicate that they could, but the point is, Mr. Justice Stewart, that the statute does not require them to exercise any such option.

Section 7 says that they have the absolute right to refrain from joining, assisting, or becoming a member of the union except as an agreement having membership as its basis may require, and there’s no question here that the Solicitor General does not, I’m sure, contend.

In fact, they wouldn’t be making the proposal.

He does not contend that membership is —

Byron R. White:

Are you disputing the — you really don’t agree with the Board in this case, dispute whether or not nonmembers would be deprived of particular rights.

Harry S. Benjamin, Jr.:

Mr. Justice White, I did not hear the first part of your question.

Byron R. White:

Well, a while ago you said — you said that if — that these employees would be deprive the rights of his members ordinarily would enjoy.

Harry S. Benjamin, Jr.:

That is correct.

Byron R. White:

What is the significance of this statement that’s here on page 61 of the — of the record, in the footnote — Footnote 12.

You said there’s no basis for the position derived from the testimony of Woodcock that nonmember employer — employees required to pay these local union dues would be deprived for certain benefits.

Harry S. Benjamin, Jr.:

We disagree with that.

We say that the record does not support that statement and I respectfully direct —

Byron R. White:

And this is the finding of the Board, I think.

Harry S. Benjamin, Jr.:

No, no.

As a matter of fact —

Byron R. White:

What is this — what is this here on page 61?

Harry S. Benjamin, Jr.:

Well, this appears on page 61 is in the Board so-called supplemental decision and order.

Now, it’s interesting to me that as we indicate in our brief, when the Board — when the Board handed down its supplemental decision and order, it vacated every finding of fact and every conclusion apparently that appears in the original decision which upheld our position and the only things that it carried over into this supplemental decision were the findings that has been made as to the respondent’s business and the fact that the union was a labor organization.

This is —

Byron R. White:

Woodcock did so testify, didn’t he?

Harry S. Benjamin, Jr.:

Woodcock testified in part to that fact but let —

Byron R. White:

So at least there is this much basis for the statement namely, Woodcock’s testimony.

Harry S. Benjamin, Jr.:

There is some statements made by Woodcock which might prompt such a statement but I respectfully direct your attention to page 90 of the record wherein I — in examining Mr. Woodcock said, “I think you have already indicated, have you not, just so it is clear that there is no provision in the union’s constitution who are nonmembers to vote with respect to the ratification of any agreement that may have been negotiated on behalf of the employees you represent in terms of membership ratification.”

“No.”

Then I said to him, “Well, is there anything in the union’s constitution which specifically spells out or protects the right of nonmembers who are represented exclusively by the union pursuant to a live certification issued by the NLRB?”

Byron R. White:

What is that?

Harry S. Benjamin, Jr.:

And he said, “No.”

Byron R. White:

That’s no difference in the footnote on 61 really.

Byron R. White:

He admitted — he admits that the Constitution indicates to the matter of union practice that nonmembers are — are extended with the normal rights of members.

Harry S. Benjamin, Jr.:

He did say that, that’s correct.

Byron R. White:

Can you say that’s wrong as a matter of fact?

Harry S. Benjamin, Jr.:

I can’t say that on the basis of the record but I say that the conclusion that he draw — drew and answers the question that was put to him, does not appear to be supported in the record.

I say that his responses to other questions indicate it clearly that they did not receive some of those benefits and privileges that members would receive and did receive.

It’s just as a small item.

He indicated, for example, that in his testimony that the nonmembers would receive the union newspaper, but the Constitution specifically said that on — that nonmembers could only receive it upon paying an additional fee and when supplement was called to his attention, he said, “Yes, that is correct.”

Byron R. White:

Well, in this instance being a — the agency shop is more onerous than the —

Harry S. Benjamin, Jr.:

In my — yes.

And you can make the point very well because of the argument that it is a lesser form.

It is not a lesser form.

Under the circumstances here and as this record reveals, in our view, this is far more onerous.

Hugo L. Black:

What do you mean by far more onerous?

Harry S. Benjamin, Jr.:

It — in that the nonmembers covered by the agency shop would have to pay the same amount that members had to pay but in return they would not have the same privilege and benefits.

Hugo L. Black:

Suppose they were accorded that same privilege and benefits, would you still object?

Harry S. Benjamin, Jr.:

I would still object on the grounds that the contract still does not require — is not based upon membership, that the agency shop, the proposal here is not one within the terms of the contract, within terms of the statute because it is not based on membership.

Hugo L. Black:

And I don’t — I don’t see that the great relevance here —

Harry S. Benjamin, Jr.:

Well —

Hugo L. Black:

— other arguments you’re making.

Harry S. Benjamin, Jr.:

It’s only in answer to the argument that was made in the brief that the agency shop is something less — is a lesser form of union security.

I say that’s not a lesser form of union security because number one, it is not based on membership but number two, if you look at lesser in the terms of burdensome, it is more burdensome because here the individuals would have to pay the same amount that a member would have to pay but would not get the same benefit, so in effect, they are subsidizing the members rather than the other way around.

Hugo L. Black:

But if they were to get precisely the same service thinking of it as a service agreement as though the Secretary of Labor for instance has been designated to form the bargaining service.If they were to get precisely the same service, you would still have the objection that this was unlawful.

Harry S. Benjamin, Jr.:

We still have the objection that it is unlawful because one is a question whether it’s based on membership, the other goes to question of treatment whether it’s discriminatory because of treatment.

Potter Stewart:

The point is that if a person who wants to join a union, he pays this money and gets the benefits of union — union membership but a person who doesn’t want to but has all the burdens and all the benefits.

It’s like if you have a dollar and you want to go to a movie, you get — you go, you see the movie for a dollar and that’s a lot different from somebody who’s taking dollar from you and give you nothing.

Harry S. Benjamin, Jr.:

Plus the fact that he has the protection of the statute which it didn’t require him to come.

Hugo L. Black:

This is not a constitutional objection you’re making.

Harry S. Benjamin, Jr.:

No, there is no constitutional question raised in this case.

There has not been a constitutional question raised here.

Hugo L. Black:

It does not raise the question of whether the Government — Congress would have the power to require a worker to contribute actual cost, pay the services for collective bargaining agent selected by the Government.

Harry S. Benjamin, Jr.:

I would have to answer that question, Your Honor, that it might form the basis for some constitutional argument that as the pleadings refrained here and as the case was tried, that was not argued and was not presented.

Now, the Solicitor General has indicated by reference to pages 101 of the record and particularly the term what is collective bargaining agreement, if I understood his argument correctly, that all one has to do is pay membership dues and initiation fees and he thereby becomes a member under this particular arrangement which we had with UAW and therefore, in effect, it’s no different from the agency shop.

Well, if you read Section 4 (a) which the Solicitor General referred, the language there is in dual terms.

It talks about becoming a member of the union, the employee who is not a member of the union shall become a member of the union and shall remain a member by paying dues and so forth.Now, the mere fact that he pays his dues does not make him a member because if you respectfully will turn to page 105, Section 3 of the union’s constitution there states under Section 3, upon acceptance of the application of membership shall be.

So that there are two things involved even under the — under the existing agreement and that is that one must make an application for a membership, a desire to become and then maintain his membership to the extent of paying his dues.

Hugo L. Black:

Will your pleadings or the issues you have raised bring before, decipher the question whether these people are being or would be required to pay for services that are not rendered by a collective bargaining agent.

Harry S. Benjamin, Jr.:

No, they do not, Mr. Justice.

The Solicitor General had also indicated that the proposal which was made to the company was in rather general terms and therefore is not easy to argue that it was illegal under the statute.

I submit that the record clearly indicates that in the original proposal made to the union, they spelled out in great detail that they want — that they wanted to condition the continued membership of nonmembers of the union solely upon the payment of a fee.

It did — it so happened that it was the equivalent of membership dues and initiation fees, but that the proposal was never intended that it’d be any broader than that.

And the record so — makes that absolutely clear, because counsel for the union stated in the record, if I may be permitted, he said to the trial examiner, “I would suggest that neither you nor the Board ought to infer from the terms used by the witness, the idea that any other proposal than that embodied in the letter is in his mind.

And then again on page 93, the counsel for the union again states, “our proposal embodies every essential subsident element of an agency shop agreement”.

Our position is a very simple one.

We say that the statute must be construed literally to say that Section 7 does not require a person to become associated with the union to make contributions to it or to assist the labor organization except to the extent that there is an agreement requiring membership.

The proposal here on its face does not require membership and therefore, the proposal as far as any protection under the statute finds no support.

Now, the Solicitor General makes some argument with respect to the provisos to Section 8 (a) (3), but those provisos never come into play.

They deal with agreements and discharge of employees for their failure to pay their membership dues or initiation fees.

Those provisions of Section 8 — the two provisos of Section 8 (a) (3) never come into play in this case because there is no agreement, there is no agreement which would be in existence that continued — conditions continued membership upon conditions — continued employment upon membership in the labor organization.

We believe that the Court of Appeals properly construed the statute that the Court of Appeals was correct when it said the language is unambiguous.

We believe that the Court of Appeals properly acted when they said that they would not rewrite the law and neither that the Court of Appeals properly expressed themselves when they said that if the statute is to be construed as the National Labor Relations Board contends that is for Congress to decide.

Archibald Cox:

Mr. Chief Justice, if I may take just one moment in the time that you offer me if I may reply.

To deal with this matter, once again, of whether the agency shop leaves the employee who must pay worse off than he would be under the union shop agreement.

I think I can make my point very simply by borrowing Mr. Justice Stewart’s example of the man in front of the movie theater.

If there were two of us there, one of whom was chores to turn over a dollar and to see the movie, he would get something in exchange.

If there were another there who were simply forced to give over the dollar and couldn’t see the movie, he would be worse off.

But that is not, I respect, what happen — respectfully submit what happens under the agency shop under this contract.

He is forced to give over the dollar, but he is told, “You now have the right to go and see the movie if you wish without doing anything more than walking into the movie”.

Potter Stewart:

If he doesn’t want to see the movie, he is worse off.

Archibald Cox:

That is not worse off than if he were forced suppose to pay the dollar and sees a movie —

Potter Stewart:

Well —

Archibald Cox:

— which are the two things we are comparing not if whether he’s worse off than if they were neither taught.

We’re comparing the giving up the dollar under any circumstances and seeing the movie by compulsion or seeing it if you wish.

I would suggest to whether seeing the movie by compulsion if the movie industry will not block — well maybe they’re worse off.