National Labor Relations Board v. Katz

PETITIONER:National Labor Relations Board
RESPONDENT:Katz
LOCATION:United States Court of Appeals District of Columbia Circuit

DOCKET NO.: 222
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 369 US 736 (1962)
ARGUED: Mar 22, 1962
DECIDED: May 21, 1962

Facts of the case

Question

  • Oral Argument – March 22, 1962 (Part 1)
  • Audio Transcription for Oral Argument – March 22, 1962 (Part 1) in National Labor Relations Board v. Katz

    Audio Transcription for Oral Argument – March 22, 1962 (Part 2) in National Labor Relations Board v. Katz

    Earl Warren:

    Mr. Raphael, you may continue your argument.

    Sidney O. Raphael:

    Thank you Your Honor.

    I’d like to pick up the thread of my argument shortly before we — Your Honor declared a recess.

    Somewhere around April of 1957 after we had gone through 12 hectic bargaining sessions over a period of time, we found ourselves in the position of where we were vacillating between individual collective bargaining, industry wide collective bargaining.

    And frankly, I don’t think anybody, you, neither the State Mediation Border or the Union or those people who were sitting in as a group in these negotiations in what thing we were bargaining.

    I think everybody recognized though that an industry-wide pattern would have been the more preferable method of evolving a collective bargaining agreement because it would’ve established uniform conditions.

    And that was —

    Potter Stewart:

    This is a metal fabricating industry.

    Sidney O. Raphael:

    This is metal fabricating Your Honor.

    Potter Stewart:

    Localized in any area or is it all over the (Voice Overlap) —

    Sidney O. Raphael:

    No, it’s Pennsylvania, New York and New Jersey principally.

    Potter Stewart:

    Primarily there.

    Sidney O. Raphael:

    And our members have rather substantial plants in all of these three states.

    And what we were trying to achieve is a uniformity of conditions.

    And I think the Union went along with that, shall we say sub-consciously, although not voicing it in those words.

    Now, the reference has been made in the argument of the petition.

    It might have been availed inference that there was a sham bargaining.

    Again, I want to repeat that the risk of — perhaps being redundant that we have real genuine, sincere bargaining and rather lengthy and hectic sessions that resolved many issues and resulted in a wage pattern which meant perhaps over a million dollars as far as our members will consign for a period of a three-year agreement.

    Now, when we got down to about the middle of May and the situation became very acute because a strike had been declared against one of the members of the association.

    And there was general chaos and disruption among the workers which we contended on the record was generated and inspired by the Union’s representatives.

    When that situation eventuate, we at that time said to the Union, “Look, if we cannot agree amicably on what constitutes the format of a collective agreement, let us give this thing to the American Arbitration Association for them, for an arbitrator or a panel of arbitrators to be chosen who have the expertise in dealing with these problems and we are agreeable to be bound by their award.”

    Well, surprisingly, the Union refused to go along.

    And with the result that the — there was a complete impasse at that time.

    The Union wrote us a letter, we wrote the Union a letter and for a period of two months, we heard nothing from the Union at all.

    So that following May the 17th, which is a local date, somewhere at the beginning of July and just about the time when the certification year was to expire, the employees were then the collective bargaining unit, sua sponte disowned the Union, notified us that they were no longer interested in having the union bargain for them collectively.

    But even before this impasse resulted in May of 1957, we had another curious situation which brought about an impasse and that was this.

    While we were engaged in this overall industry-wide bargaining the Union went and they used the divide and conquer procedure which they have a perfect right to do.

    It’s — all is fair in an economic war, we agree to that.

    And they went and obtained a collective agreement from the largest employer in the industry operating a plant in Pottsville, Pennsylvania.

    And in this agreement, a clause was written which stated, “No other employee shall be accorded times and conditions more favorable than those that are prescribed in this contract.”

    Sidney O. Raphael:

    And that was sometime of the early part of January of 1957 so that when we met with the Union’s representatives the next time, we were met head on with the statement by the Union that we would have to conform with the times and conditions of this atmosphere contract.

    Earl Warren:

    Mr. Raphael, may I ask this — this question, do we have to review all these facts to decide this case or do we just have to decide whether — whether the — the Board has a right to make such a — an order without finding that the company intended to recruit bargaining?

    Sidney O. Raphael:

    Well, I believe that and if we’re to follow —

    Earl Warren:

    (Voice Overlap) — if we don’t have to follow — if we don’t have to review all these facts, it seems to me, we ask the very narrow question of law, does we?

    Sidney O. Raphael:

    Well, no.

    I would like to — I would like to agree with you that it is a narrow question.

    I realized that I don’t — nobody would like to overburden the Court.

    But unfortunately, in the light of the decisions especially the Insurance Agents case, I think that the factual content of the case with respect to the good or bad faith bargaining becomes very crucial if we ought to sustain the corollary findings under 8 (a) (5) and 8 (a) (1).

    Earl Warren:

    What did the — what did the Court of Appeals do with the findings of the Board?

    Does it disagree with the factual findings of the — of the Board?

    Sidney O. Raphael:

    Well, they didn’t disagree with the factual findings but they had reservations about them.

    But, it is my opinion that since the Court was determined by majority opinion to send the case back to the Board on a mandate, to educe additional evidence with respect to the good or the bad faith finding, I think that in effect eventually would resolve the issue.

    Because if we went back to the Board and we have to determine the good faith of the employer, additional evidence would have to be educed.

    And this additional evidence would in turn supplement the evidence already adduced and then the Board would have to say, “Well, we feel that the overall bargaining tactics of this employer were fair, that perhaps he did go often the left field a little bit here and there but it wasn’t that serious and it didn’t amount to that much that we have to make an overall finding of failure to bargain.”

    Earl Warren:

    Well, if the court below is right though, we don’t have to review all these facts, do we?

    If the court below is right from —

    Sidney O. Raphael:

    If the court —

    Earl Warren:

    — on the law, then it would in fact goes back —

    Sidney O. Raphael:

    If the fact — if you agree with the threshold question, that’s it.

    Earl Warren:

    Yes, alright.

    Now if we don’t — if we don’t agree with it, isn’t it a just question of law then?

    Sidney O. Raphael:

    No, I feel that you —

    Earl Warren:

    If it — if it needn’t be subjective but only objective wouldn’t that be the issue?

    Sidney O. Raphael:

    Well, I — I — I think that the issue on the cases whether or not the case on the totality, we go back to the Universal Camera case.

    In other words, on the basis of the overall evidence on the case, we contend that there has not been substantial evidence to make an overall finding in this case.

    Hugo L. Black:

    Although a finding of (Inaudible) —

    Sidney O. Raphael:

    A finding —

    Hugo L. Black:

    (Voice Overlap) —

    Sidney O. Raphael:

    A finding —

    Hugo L. Black:

    — is a finding of what?

    Sidney O. Raphael:

    A finding of failure to bargain in good faith.

    Earl Warren:

    Well — what —

    Sidney O. Raphael:

    That would be 8 (a) (5).

    Earl Warren:

    Well what — what question that do you — do you raise here on your — how do you state the question?

    Sidney O. Raphael:

    Well — question number one Judge Warren, whether on the context of the continuing impasse and an ultimate breakdown of negotiations both caused by Union and employer violates Section 8 (a) (1) and (5) etcetera, by following its longest established standard practices known and discussed with the Union.

    That’s a factual question.

    Earl Warren:

    Yes, but the question presented in the petition, the one on which you granted cert is this, whether there is a violation to Section 8 (a) (5) and (1) of the National Labor Relations Board when prior to the discontinuance of collective bargaining negotiations in the existence of an — of a possible — any possible impasse, an employer without notice to or consultation with the employees’ bargaining representative unilaterally places in effect new wage rates substantial in excess of those offering.

    The representatives changes the sick leave policy and grants numerous merit increases.

    Sidney O. Raphael:

    We know that Judge but we say we didn’t do those things.

    Earl Warren:

    I beg your pardon?

    Sidney O. Raphael:

    We say we didn’t do those things and we say that the records sustain our position.

    Earl Warren:

    Well, you object then to the findings of the Board and the — and the findings of the —

    Sidney O. Raphael:

    That’s right.

    Earl Warren:

    — Court of Appeals, this —

    Sidney O. Raphael:

    We don’t object to the findings of the Court of Appeals if — I say again if that — if the threshold question is resolved, we don’t have to come to the other question.

    Earl Warren:

    Yes, but where does — where does the Court of Appeals designate it with the findings — the factual findings of the Board.

    Sidney O. Raphael:

    Well, the Court of Appeals disagrees with the factual findings of the Board in the respect that they don’t come to the conclusion on the basis of the good faith section of the amended act that we, on an overall basis, violated anything and they send back to the Board the determination of that question.

    So apparently, the Court did not come to any conclusion.

    It would appear that way to me.

    Now, I want to get down to the question of the matter of whether or not the determination on the issue of violation of 8 (a) (1) and 8 (a) (5) can be made on a basis of per se violations or must it be in the totality of all of the conduct of the employer.

    I’d like to point out and we have referred to this in our brief on pages 20 and 21 that only recently in an address by a member of the National Labor Relations Board, Gerald Brown, I think it was at Duke University, he agreed that the Board should now determine cases not on a per se basis but on the basis of the formula enunciated in the opinion of Mr. Justice Frankfurter in the Insurance Agents case.

    Now, this is a member of the National Labor Relations Board making a speech of very, very recent vintage.

    And I say that this contrary to the statements of the Solicitor, he does not speak for his client.

    His client has spoken completely at odds with him.

    Felix Frankfurter:

    And there’s one member of the Board who speaks for his — for the Board?

    Sidney O. Raphael:

    Well —

    Felix Frankfurter:

    — one member would speak — speak for the Board?

    Sidney O. Raphael:

    He’s — he might and for —

    Felix Frankfurter:

    I’m asking (Inaudible) —

    Sidney O. Raphael:

    Well, he might — he says that this is the policy the Board should pursue and he’s a member of the Board, Judge Frankfurter and I think that this should carry considerable weight in — in indicating the present day thinking as of this moment that they do know longer adhere to the old view before the amendment of the Act to the per se violation but they are rather now dealing on the basis of a totality of the record.

    Sidney O. Raphael:

    Now, we have referred to his — we have quoted some of these comments where he says on page 21 and we have highlighted that.

    Felix Frankfurter:

    Where is the full text of the speech to be found in this?

    Sidney O. Raphael:

    I think the Solicitor General has the full text.

    It seemed —

    Felix Frankfurter:

    I just wanted the citation.

    I didn’t want for you —

    Sidney O. Raphael:

    Oh —

    Felix Frankfurter:

    I’d be glad to have the facts in this.

    Archibald Cox:

    What’s the sect — section?

    I don’t think it’s — I don’t think it’s fully printed.

    We’ll get other copies for the Court if it wishes.

    And I’ve just handed one with the marshal.

    Sidney O. Raphael:

    I want to refer to some of the —

    Felix Frankfurter:

    (Inaudible)

    Sidney O. Raphael:

    I beg your —

    Felix Frankfurter:

    Pardon me for interrupting.

    Was this — or was this released by the Board or by the speaker or in fact some — is that a case the other day which involved knowing what — who speaks to whom?

    Archibald Cox:

    Well, it was up without (Inaudible).

    I believe that this is put out by the Board’s press relations office as they speak through a single member.

    Mechanically, it emanates from the Board’s headquarters that each individual speaks for himself.

    Felix Frankfurter:

    I can read it without being a part of the (Inaudible) the NLRB on the new frontier that — that’s not a technical term, is it?

    Archibald Cox:

    I take it a joke.

    My association does not permeate the doctrine of the Court.

    Sidney O. Raphael:

    May I proceed?

    Earl Warren:

    You may continue Mr. Raphael.

    Sidney O. Raphael:

    I would like to refer to some of the state — some of the con — cases as cited by the Solicitor in the argument.

    And he cites for instance the Borg-Warner case.

    I think Judge Frankfurter in his opinion in the Insurance Agents case on page 509 distinguished the Borg-Warner case in pointing out that in Borg-Warner —

    William J. Brennan, Jr.:

    Mr. Raphael, is there any — nothing about the Court opinion in the Insurance Agents that has a bearing on the problems here, is it only the concurring opinion on which it would consult?

    Sidney O. Raphael:

    Oh no, I’m not — I’m just referring to certain sections of it.

    Sidney O. Raphael:

    But I know Your Honor wrote the opinion on the case on that.

    William J. Brennan, Jr.:

    It’s not important if I wrote it.

    Sidney O. Raphael:

    I’m not saying this by way of —

    Felix Frankfurter:

    Anything.

    William J. Brennan, Jr.:

    Not suggesting you are but I’m just wondering if the court below as I understood it relied on Insurance Agents and that is the Court opinion.

    Sidney O. Raphael:

    Yes.

    They did Your Honor.

    William J. Brennan, Jr.:

    But you’re relying on the concurring opinion.

    Sidney O. Raphael:

    No, I’m not relying on the concurring opinion.

    I’m quoting from the concurring opinion.

    Hugo L. Black:

    What’s the object in it?

    I thought I agreed to the court opinion.

    I didn’t know that —

    Sidney O. Raphael:

    Well, I — I think — I think if I may say so, the concurring opinion went a little further in elucidating on what the affect of the amendment of Section 8 (d) was and its application to present day collective bargaining.

    And it’s only in that posture that I want to refer.

    I’m not by — I know that the decision itself.

    Your opinion Judge Brennan spoke about Section 8 (d) and that the amendment, the effect of it.

    But I think in the concurrent opinion, it was a little more elucidation on the subject and that was the only reason that I made reference.

    Hugo L. Black:

    Do you mean, elucidated the court opinion?

    Sidney O. Raphael:

    It elucidated the court opinion.

    Felix Frankfurter:

    Isn’t that a rule?

    William J. Brennan, Jr.:

    That is new.

    Felix Frankfurter:

    (Inaudible)

    William J. Brennan, Jr.:

    Maybe the court opinion didn’t use it because they don’t think its — if it was irrelevant.

    Sidney O. Raphael:

    You don’t want me to act as a judge, do you?

    Felix Frankfurter:

    We’ve got a rule against referring to a concurring opinion, have we?

    Sidney O. Raphael:

    Not that I know off Judge Frankfurter.

    Felix Frankfurter:

    Only, you do refer to the dissenting opinion but concurring opinion have a lower status.

    Sidney O. Raphael:

    I would like in connection with —

    Felix Frankfurter:

    Its shorter (Inaudible)–

    Sidney O. Raphael:

    The further argument of Mr. — of Solicitor General point to the fact that —

    William J. Brennan, Jr.:

    Well you know you’re not alone Mr. Raphael.

    The Solicitor General thought that the concurring opinion was particularly helped pursuant to.

    Sidney O. Raphael:

    Well, in other words, I’m in agreement with the Solicitor General.

    William J. Brennan, Jr.:

    Apparently that was the question asked.

    Sidney O. Raphael:

    I would like to point out to the Court that in the opinion of Judge Waterman and the Court of Appeals on page 707, he refers or rather he quotes from an article written by the Solicitor General entitled Duty to Bargain in Good Faith, 71 Harvard Law Review 1401, 1424 and —

    William J. Brennan, Jr.:

    You’d like the speech of —

    Sidney O. Raphael:

    Like General Brown.

    William J. Brennan, Jr.:

    — the members of the Board the same idea?

    Sidney O. Raphael:

    Yes.

    Now, I — I sincerely feel that in the light of the amendment, Section 8 (d) and specifically considering the fact that the Board refused to go along with the trail examiner on the good faith issue that I think it was perfectly proper and appropriate in order to have a complete record with complete findings of fact and conclusions of law which I think this record was devoid off in the light of Section 8 (d) for the Court to have issued its mandate in sending the case back to the Board for the adoption of further evidence.

    And in the phase of that, I think that Your Honors should affirm the order of the court below.

    I thank you very much for the time you’ve given me.

    Earl Warren:

    Mr. Raphael.

    Mr. Solicitor General.

    Archibald Cox:

    I don’t think any extended reply is necessary Mr. Chief Justice.

    I would just say one word to make our position clear about some of the questions of fact that have been raised.

    Mr. Raphael’s arguments on the facts are quite contrary to the findings of the trial examiner and of the Board.

    And the Court of Appeals assumed those finding to be correct and our position of course is that the case is to be decided here on the basis of those findings of what questions maybe open to Mr. Raphael when the case goes back as we think it should to the Court of Appeals.

    Or whether he then can argue that there was a lack of substantial evidence to support the findings and so forth is not a question presently here.

    We think there was substantial evidence and I see no reason to discuss it.

    So far as Mr. Brown’s opinion goes — speech goes, I think the Court will find nothing in there which is in anyway inconsistent with the argument made on behalf of the Board here or with the general philosophy that I have sought to express.

    Potter Stewart:

    Are you contending for a per se rules necessary?

    Archibald Cox:

    We’re contending that unilateral action of the magnitude involved here during negotiations while the Union is seeking to bargain of the substantives and before an impasse has been reached, it is per se a violation of the duty to bargain and of Section 8 (a) (1).

    Potter Stewart:

    In other words, your answer is yes.

    Archibald Cox:

    The answer is yes.

    The qualification I put in was purposeful.

    It is a rankle which frankly has always troubled me.

    There are certainly some minor instances of unilateral action which it must be possible to take.

    Suppose the farmer — as far as a worker punches a farmer in the nose and surely the employer can get him out of the plant even though negotiations were going forward.

    Archibald Cox:

    And I — therefore didn’t — I wanted to limit myself to unilateral action of this magnitude prior to an impasse during the —

    Potter Stewart:

    But your answer is —

    Archibald Cox:

    — negotiation.

    Potter Stewart:

    — yes.

    You are contending for a per se rule and then you just filed it as —

    Archibald Cox:

    As applied to —

    Potter Stewart:

    Define what the —

    Archibald Cox:

    — certain things —

    Potter Stewart:

    — rule ought to be.

    Archibald Cox:

    As applied to certain things, yes.

    Potter Stewart:

    Yes.

    Felix Frankfurter:

    Alright.

    Archibald Cox:

    Yes.

    Felix Frankfurter:

    Mr. Solicitor.

    Archibald Cox:

    Without any questions, absolutely.

    Felix Frankfurter:

    Mr. Solicitor, unless I’m wrong, you — the phrase per se didn’t come in your main argument, is it?

    I don’t mean —

    Archibald Cox:

    I didn’t use it.

    Felix Frankfurter:

    That’s what I mean.

    Archibald Cox:

    I didn’t use it.

    Felix Frankfurter:

    Alright.

    I’m usually in leery of phrase so I want to know what per se is.

    Archibald Cox:

    Well, I take it that it means that this Act —

    Felix Frankfurter:

    I mean, I want (Voice Overlap) —

    Archibald Cox:

    In and of themselves —

    Felix Frankfurter:

    Would you state —

    Archibald Cox:

    — regardless of the employer’s state of mind are a violation of Section 8 (a) (1).

    Potter Stewart:

    It’s a unilateral action of this kind and magnitude taken before an impasse and bargaining is reached is per se a failure to collectively bargain is a violation —

    Archibald Cox:

    Is a failure to collectively bargain regardless of the employer’s —

    Potter Stewart:

    Right.

    Archibald Cox:

    — state of mind.

    Potter Stewart:

    Yes, therefore a violation of 8 (a) (5) of the statute.

    Archibald Cox:

    At Section 8 (a) (1).

    Potter Stewart:

    And — and also Section 8 (a) (1).

    Archibald Cox:

    Yes.

    Potter Stewart:

    That’s the per se rule from which you’re contending.

    Felix Frankfurter:

    It’s not a very — not a very embracing rule of law because of this kind and — what was the other adjective or the other qualification under these circumstances?

    Potter Stewart:

    Well, any action by —

    Archibald Cox:

    No, I didn’t —

    Potter Stewart:

    — this employer.

    Felix Frankfurter:

    But I just want to know what you deemed to be the rule of law which will guide a case coming up before the Board, the Tuesday following the Monday this case goes out in your favor?

    Archibald Cox:

    I contend that for an employer to take unilateral action of substantial magnitude or something like that.

    I’m trying to exclude the discharging the thought.

    Potter Stewart:

    The individual grievance of a —

    Archibald Cox:

    Yes.

    That for employer to take unilateral action to change terms and conditions of employment.

    Potter Stewart:

    Bargainable.

    Archibald Cox:

    Bargainable terms and conditions of employment at a time when the employees have designated a bargaining representative and when the bargaining representative is seeking to bargain on those subjects and when no impasse has been reached is regardless of the employer’s state of mind in violation of the statute.

    Potter Stewart:

    And regardless of any other circumstances really?

    Felix Frankfurter:

    Well —

    Archibald Cox:

    No, I don’t think I would go — I don’t think I would go that far.

    Potter Stewart:

    What circumstances can you think of that would make it a violation?

    Archibald Cox:

    Well, I would — I would have to — without being more precise, I would think the Union’s conduct might be a relative circumstance.

    If the Union, while seeking to bargain was conducting in itself a way that made it practically negotiate — practically impossible to carry on negotiations, I would think that would raise a different issue (Voice Overlap) before this Court on the findings of the Board.

    That’s the — that’s the chief area in which I’m uncertain.

    Felix Frankfurter:

    But we know that it (Voice Overlap)–

    Archibald Cox:

    I just don’t — I don’t think of any other Justice Stewart.

    I’m not trying to evade it —

    Potter Stewart:

    I —

    Archibald Cox:

    — but I — I just hesitate to state it more broadly than the case needs to — be required.

    Potter Stewart:

    Well, I was wondering if you were thinking of — regardless of what was actually going on at the bargaining table, your — your rule, your — the rule you contend for as I understand it, you would apply whether or not and regardless of the fact that the employer’s representatives were sitting down day after day after day after day at the bargaining (Voice Overlap) —

    Archibald Cox:

    That’s correct.

    Potter Stewart:

    — subjective in —

    Archibald Cox:

    I would say for example, let’s suppose that the employer’s representative was sitting down day after day —

    Potter Stewart:

    It’s subject in —

    Archibald Cox:

    — bargaining in —

    Potter Stewart:

    — good faith —

    Archibald Cox:

    complete good faith —

    Potter Stewart:

    Yes.

    Archibald Cox:

    — with a union which has been certified to represent all the employees is the plant-wide union.

    Potter Stewart:

    Yes.

    Archibald Cox:

    And he’s bargaining with that union in complete good faith.

    It goes out and bargains with the union representing the pattern makers, a small group at the same time.

    He’s violated the statute, perfectly clear because he is obliged to concentrate on fixing terms and conditions in negotiations with the majority representative and each unit would include the pattern maker.

    Again, if he goes and bargains with individual employee, even though he sits down day after day.

    Now, I am saying following the opinion of the Court in the Insurance Agents case that unilateral action is like bargaining with the minority union or individual bargaining.

    Felix Frankfurter:

    It leaves open considerable area of discretion or at least of — of judgment determination — determination by judgment whether an impasse has been reached.

    Archibald Cox:

    That is true.

    Felix Frankfurter:

    We know in the international field, we think an impasse has been reached and no, no, no, has been said and two weeks later, somewhat rather, yes, it said.

    Archibald Cox:

    This — I think the — I think that is certainly true, and there’s — there’s room for an area of judgment and discretion.

    I think the point here is clear that the Act after the — an effort has been made to fix terms and conditions of employment by joint determination.

    And if that doesn’t work, the employer has to have an opportunity to run his plant.

    And a variety of circumstances if he was one of five, who would always follow the same wage pattern and they were competing with each other for skilled machinists, the time when he can move unilaterally, by it become much quicker, might come much quicker than in a situation like this one.

    But here, we have an explicit finding that there was no impasse and indeed two of these instances of unilateral action came one very early in any negotiations, one during a recess at the request in the State Mediation Board.

    And so I think there’s — on the findings made by the trial examiner, the Board and accepted by the Court of Appeals, there is — this is the case where there is no impasse.

    Earl Warren:

    Mr. General, there was — I’m a little confused just a few moments ago, I understood you say that when this case goes back to the Court of Appeals as you suggest that it does that there are certain things open to (Voice Overlap) —

    Archibald Cox:

    Well I —

    Earl Warren:

    And I heard — understood you at the beginning to say that all you — that you wanted both compliances.

    And it —

    Archibald Cox:

    Well —

    Earl Warren:

    It was just — we sent back to the Court of Appeals for both compliance.

    Archibald Cox:

    Well, I suppose this would be — I’ve — I had assumed, this is — what we seek is finally an order enforcing the — is a decree enforcing the order of the Board.

    I suppose this Court’s mandate would be reversed and remanded for further proceedings in accordance with its opinion.

    Now, there may —

    Felix Frankfurter:

    What questions were left open?

    Archibald Cox:

    Well, I don’t — I’m not sure what questions were —

    Felix Frankfurter:

    Did you seek for — if you seek full enforcement and you do not even give to Judge Lumbard —

    Archibald Cox:

    I don’t deal to that.

    Felix Frankfurter:

    Yes.

    So what is left open?

    Archibald Cox:

    I was envisaging this possibility.

    I don’t think it’s a very real one but I don’t see that we can argue that it’s foreclosed.

    The argument is made here by the respondent that there was a — so long a period of delay between the events in question and the issuance of this order that the order could bargain with the Union should not in any event have been enforced that conditions have changed too much.

    That’s the contention which may — I don’t know, may have been presented to the Court of Appeals or may not have been passed upon by it and it would seem to me on the remand on that ground for challenging the decree of the order of the Board might still be available.

    And — but I was really thinking to emphasize was that those other possible grounds of attacking the order as to which I really say nothing aren’t before this Court.

    Indeed, that one would require a change in the order and this Court under its rules to jurisdiction wouldn’t have power to deal with it.

    That was all I was —

    Earl Warren:

    I see, I see.

    Archibald Cox:

    — seeking.

    If he has other grounds for attacking it that are not related to this question of unilateral action of Section 8 (a) (1) and (5), I suppose he still can present them there.

    Potter Stewart:

    In other words, there may be grounds which the Court of Appeals did not reach.

    Archibald Cox:

    It’s possible, yes.

    That’s — that’s really all —

    Potter Stewart:

    — (Voice Overlap) — Court of Appeals eventually to —

    Archibald Cox:

    Yes.

    Right.

    That is what —

    Potter Stewart:

    — (Voice Overlap) — on the grounds.

    Archibald Cox:

    — all I intended to —

    Earl Warren:

    Yes —

    Archibald Cox:

    suggest —

    Earl Warren:

    Yes.

    Archibald Cox:

    — Mr. Chief Justice.

    Felix Frankfurter:

    Would you think it was desirable or undesirable to use the phrase per se except with such particularity of description of the circumstances of this case on which the order of the Board rested that there wouldn’t be anything per se except to this particular case?

    Archibald Cox:

    I don’t think the Board reported to adopt its narrow rule as that.

    Felix Frankfurter:

    No, I’m not suggesting it did.

    I’m just — if may use any vulgarism, leery of any per se in this model.

    Archibald Cox:

    Well, I — I think the rule — I think the rule per — the expression per se is —

    Felix Frankfurter:

    That’s what I was talking about.

    Archibald Cox:

    — an unfortunate expression.

    Felix Frankfurter:

    That’s what I’m talking about.

    Archibald Cox:

    I do think that my case requires — made to convince the Court that there was a violation of the statute here regardless of the employer’s state of mind.

    Felix Frankfurter:

    That — I understand that.

    That’s a very different thing.

    Archibald Cox:

    Yes.

    Hugo L. Black:

    Do I understand that you’re abandoning your request at the end of your brief, that this be remanded with directions to have a decree enforcing the Board’s order.

    You used — you have a footnote there about the little instant that you mentioned about times (Voice Overlap) indicating that that’s not officially important to — inquiring any difference as to this one.

    Archibald Cox:

    I would suppose that our request if there are any other points that were raised did not pass on below, it would seem to me as I stand here Mr. Justice Black, had been phrased a little too broadly.

    I may get trouble with my assistance when I go back to the office.

    But as I stand here and think of it, it would seem to me that if he had raised some other points in the court below that weren’t passed on, that he’s still entitled to preserve them.

    Hugo L. Black:

    Well, I don’t want to delay this but I do — this all occurred and there was reference to that.

    What you’re really arguing is that a finding of bad faith is not indispensable to the findings which the conclusion which Board reached, didn’t it?

    Archibald Cox:

    That’s correct.

    Hugo L. Black:

    Well, if that’s it and suppose it would be affirmed, it’s not — it’s not indispensable.

    As I understand it, he’s arguing is under the Universal Camera doctrine, taken as a whole, looking at the whole record, the Board has already — the Court has already decided that it will not enforce the order under the — the Universal Camera rule.

    Archibald Cox:

    Well, I don’t think that the Universal Camera doctrine —

    Hugo L. Black:

    That’s what I want (Voice Overlap) —

    Archibald Cox:

    — means that the Court of Appeals is entitled to look at the Board order and then say, “Well, taking everything into account but we decide not to enforce it.”

    I take it that the expression relates to the findings of fact and to the question whether there is evidence to support the findings of fact and this would include particular findings.

    And that the effort was to compress what was believed to — by the Congress and some experts to be the prior practice in picking and choosing bits of evidence to support finding in contrast with an effort to determine whether the evidence is substantial, viewed in the light of its context to other element.

    Archibald Cox:

    But I don’t think this goes simply to a general power to enforce or not enforce a Board order depending on your judgment of the record.

    Hugo L. Black:

    I didn’t — I didn’t make my problems clear as I thought you’d raise it as this.

    As I understand your argument is in effect with reference to 8 (b) (5) that this is the equivalent of a finding of the Board that they refused the bargaining.

    That’s the equivalent of it, isn’t that right?

    Archibald Cox:

    Yes of it’s —

    Hugo L. Black:

    And they refused to bargain —

    Archibald Cox:

    I would say it was a ruling of law that they had refused —

    Hugo L. Black:

    Ruling of law?

    Archibald Cox:

    — to bargain.

    Hugo L. Black:

    Ruling of law?

    Archibald Cox:

    Yes.

    Based upon the finding that they took these three unilateral act.

    Felix Frankfurter:

    And the ruling was — if I may intervene?

    Hugo L. Black:

    Yes, go ahead.

    Felix Frankfurter:

    And the ruling was set aside — and the ruling was disaffirmed by the Court of Appeals through the introduction from your point of view of a near relevant criteria namely good faith.

    Archibald Cox:

    Yes.

    They —

    Felix Frankfurter:

    So that —

    Archibald Cox:

    — set up.

    They misinterpreted —

    Felix Frankfurter:

    What the Court of Appeals —

    Archibald Cox:

    — the statute.

    Felix Frankfurter:

    What the Court of Appeals did was refuse to enforce it by requiring an element which as a matter of law you contend is not what he requires.

    Archibald Cox:

    That’s correct.

    Hugo L. Black:

    Well, have they passed on it then without that element?

    Have they reached that conclusion without that element?

    Archibald Cox:

    I think as I read the opinions, they did not consider perhaps because they were not asked whether the Board’s findings were supported by substantial evidence.

    They accepted them.

    I don’t want by saying that this question is theoretically available to cast any doubt on them, but I am convinced through my study of the record that there is substantial evidence, more than substantial evidence.

    William J. Brennan, Jr.:

    Well, Mr. Solicitor, you’re not — I gather you don’t believe that whatever limitation on the Universal Camera there maybe on this Court’s review —

    Archibald Cox:

    Hasn’t anything to do with this.

    William J. Brennan, Jr.:

    — had anything whatever to do with this.

    Archibald Cox:

    Nothing to do with this.

    No.

    William J. Brennan, Jr.:

    That’s what I thought.

    Archibald Cox:

    No.

    Not at all.

    William J. Brennan, Jr.:

    Yes.

    Felix Frankfurter:

    But before you sit down, may I — and fully understand the colloquy between you and Mr. Justice Black.

    If the question of the sufficiency of evidence on Universal Camera doctrine fully unrelated to any proper or improper principle or doctrine of law to which — which was — by which the facts are to be judged.

    If that issue was opened before the Court of Appeals, and I think it was.

    I don’t know much about it.

    If it was opened before the Court of Appeals and in fact the Court of Appeals had no occasion to go on it because they refused to enforce on this illicit view about good faith, then I should suppose in view of what you said you think that that’s still open before them to press before the Court of Appeals taking out as improper elements, is that right?

    Archibald Cox:

    I don’t see why not.

    Felix Frankfurter:

    Alright.

    Hugo L. Black:

    That was the question that —

    Felix Frankfurter:

    But aren’t we (Voice Overlap) —

    Archibald Cox:

    To — let me just to be sure that I am clear because I’m a little worried.

    Maybe I didn’t understand you.

    Let us suppose that the respondent were in a position to claim that the work was an impasse in December, 1956 and that there was no evidence to support the Board’s finding that it occurred in May.

    I take it that when the case goes back to the Court of Appeals that he can again oppress that attack on the Board’s finding that the impasse was in May, and that that question isn’t properly here at all.

    That’s what I’m trying to say.

    Felix Frankfurter:

    Or any of — or any other issue on which the Board must face a judgment with due regard to the entire record as a matter of evidence stripped of any irrelevant or inadmissible doctrine of law.

    Archibald Cox:

    Yes.

    Felix Frankfurter:

    Well, that makes a — presuming that you should prevail on that — on the main issue which you’ve argued, effects what this Court is to do in sending the case back.

    Archibald Cox:

    Well, I would — I would suppose that the proper mandate was reversed and remanded for further proceedings not inconsistent with his opinion.

    Felix Frankfurter:

    Making clear what —

    Archibald Cox:

    — which would make it clear what the rule of law is and that the court below weigh down an erroneous rule of law and leaving the petitioner any other contentions either based on the inadequacy of the evidence or other rules of law.

    I don’t think of any —

    Felix Frankfurter:

    It isn’t (Voice Overlap) —

    Archibald Cox:

    — but if he think of one why —

    Felix Frankfurter:

    And it isn’t for us to say what issues were or were not opened to the Court of Appeals which for — from its point of view has had no occasion to canvass.

    Archibald Cox:

    It would seem they weren’t open to May, right.

    Felix Frankfurter:

    Alright.

    Archibald Cox:

    Thank you.