National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO – Oral Argument – November 14, 1960 (Part 1)

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Audio Transcription for Oral Argument – November 10, 1960 in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO
Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Earl Warren:

You may proceed Mr. Manoli.

Dominick L. Manoli:

May it please the Court.

When the Court arose for the lunch and recess, I was attempting to set forth some of the incongruities which we think that the decision below gives rise to — particularly in connection with Section 303 of the Labor Management Relations Act.

That Section as I explained gives a right to anyone who has been injured in his business by one of these jurisdictional dispute strikes, the right to bring a suit for damages.

That Section does not create a different right than is created in Section 8 (b) 4 (D) or a different offense and is created in Section 8 (b) (4) (D) but adds the sanctions of a cease and desist order, the sanctions of damages.

And as this Court made clear in the Juneau Spruce case decided some six or seven years ago, this Court made clear in that case, the elements of the offence under 8 (b) (4) (D) and 303 are the same and that prosecution for damages under 303 is in no way dependent upon an antecedent for determination under Section 10 (k).

Under Section 303, as under Section 8 (b) 4 (D), a claim to a disputed work based upon tradition, custom or what have you is irrelevant.

Now, we believe that if the — that if the offense in — under Section 303 is established as the statute says is established by showing that the employer’s — by showing that the employer’s assignment is not in derogation of a Board certificate or order within the meaning of 8 (b) 4 (D), then tradition and practice are irrelevant to a Section 303 action and if they are irrelevant to a Section 303 action, we believe that they are also irrelevant under 8 (b) 4 (D) as well as Section 10 (k) because —

William J. Brennan, Jr.:

Section 303 action is what — even if 8 (b) (4) (Inaudible)

Dominick L. Manoli:

That’s right, that’s right.

Due — there had been a situation where the Board has found an 8 (b) 4 (D) violation or rather no violation of 8 (b) 4 (D) but a District Court has.

But the Court of — the — this Court made clear in the Juneau Spruce case however, that a Section 303 action is not dependent upon a prior board determination in a Section 10 (k) hearing.

Now, if tradition and custom are irrelevant to a 303 action, as I say, we think they are also irrelevant under the provisions of the statute that the Board administers because if it were not so — if it were not so, you would have the rather startling result that a strike could be illegal under 303 for purposes of awarding damages and yet lawful under the unfair labor practice provisions of the statute.

Decisions below leads not only to this incongruity but it also cuts across, we think — it also cuts across of what — one of the most basic policies of the statute, namely the policy against discrimination in employment which encourages or discourages union membership.

Under the statute, an employer has the inherent right to select his employees and make his work assignments.

The principle restriction which a statue imposes upon the exercise of that right is that it shall not be exercised in a discriminatory fashion so as to encourage or discourage union membership.

But the ruling below which would require the Board to award — award work affirmatively to the members of one union or another under the basis of tradition, custom and the like, would foster through the Section 10 (k) proceedings a circumvention of this policy against discrimination.

Now, let me illustrate.

Suppose that you had an employer whose employees are presently members of or represented by union A and that that employer has obtained a job.

Union B claiming that its members are entitled to this kind of work puts pressure upon him to give its members to — or puts pressure upon the employer to give the work to his members.

Now, the employer can either discharge his employees and — and replace them with members of union B or it can give up the job altogether.

In either case, there is discrimination against his employers by reason of their non-membership in union B.

Let me cite one more example.

Often, the jurisdictional disputes pit a union against an — an unorganized group of employees.

If tradition or custom were to be controlling in a situation like that, the chances are that in — in most cases, the union would probably prevail as against the unorganized group because the union undoubtedly couldn’t make a better showing of tradition or custom or practice in support of its claim than could the unorganized group.

Again, you would have encouragement of the unorganized group to join the union which obtained the — the work by virtue of its claims based upon tradition or custom or practice.

Hugo L. Black:

If that — if the Board doesn’t exercise power to settle this dispute as between them completely, does it leave it unsettled or what happens? Jurisdictional disputes, I have supposed, I — I remember that they’re one of the worst things in connection with labor disputes.

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

Was long time with great effort to find some way to solve it.

That having a — cases shown into — that’s in the Court every time that they happen, the way they settle it.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Dominick L. Manoli:

Your Honor —

Hugo L. Black:

If — if your action — if the Board’s position is upheld, how is the dispute settled?

Dominick L. Manoli:

Your Honor, I think that there is unanimity among all the members of Congress who passed this statute that jurisdictional disputes were bad and they were against that just as they were against sin but there was quite — they were divided as to how to reach heaven one might say in how to settle these disputes.

Hugo L. Black:

Well now, and could it be —

Dominick L. Manoli:

Now —

Hugo L. Black:

What — could it be possible if they tried to reach heaven by putting in on the Board and the Board has decided that would be heaven for them?[Laughter]

Dominick L. Manoli:

No Your – [Attempt to Laughter] as I — I shall — as I shall explain in a moment I’m getting to it.

When we come to look at the legislative history, you will see that while there was — some of the legislators hope that this would give the Board the power to arbitrate these disputes and settle them once and for all that after the conference committee got through with the Bills and that I will explain this shortly.

After we’ve — conference committee got through with the Bills, there was very little left to that at least as we read the legislative history.

That all that was left as we see it, all was left to the Board was simply to determine a Section 10 (k) hearing, whether or not he employer’s assignment was in derogation — was in derogation of a certificate or a — or an order of the Board which had been issued in a representation or unfair labor practice.

William J. Brennan, Jr.:

Well I get this, Mr. Manoli, isn’t the answer to Mr. Justice Black’s question that it doesn’t settle the jurisdictional dispute.

We get a fight between the no rights of the carpenters, the machinists and the carpenters of the no rights to — all you decide is that the employer of a 10 (k) proceeding, the employer had the right to assign it to (Inaudible)

Dominick L. Manoli:

That’s right.

William J. Brennan, Jr.:

And you don’t settle the basic underlying so-called jurisdictional dispute between the machinists and the — and the carpenters.

Dominick L. Manoli:

That’s — that’s correct.

Mr. Justice Black however, suggested that if the Congress meant to have the Board settle that — and I’m —

Hugo L. Black:

I didn’t know whether they made it or not, I just recalled the history that many efforts were made to — and to obtain some ways to dispose of these things and get them settled.

Dominick L. Manoli:

As I say, there was unanimity on the part of Congress that these were bad things but they — they didn’t perhaps choose an adequate method for resolving the basic underlying disputes, though the statute does not afford that kind of solution to this problem.

Now it maybe that this are the kind of a problem that Congress left to take a look again and a — take a look into, but as we read this statute it does not permit the Board to resolve the underlying jurisdictional dispute between the no rights of the carpenters.

William J. Brennan, Jr.:

Well, how will (Voice Overlap) between the machinist and the carpenters going on for — of no rights were.

Dominick L. Manoli:

All of these — all of these arguments have been going out for many, many years.

Felix Frankfurter:

(Inaudible) years.

William J. Brennan, Jr.:

(Inaudible) Mr. Justice Frankfurter says (Voice Overlap) —

Dominick L. Manoli:

That’s all in their — their long standing disputes and —

Felix Frankfurter:

Mr. Manoli, I think it will make for the orderliness of your argument if I don’t interrupt it and now I want to interrupt you, speak into aspects of the legislative history so I hope you’d be able to come that.

Dominick L. Manoli:

I’m turning to that —

Felix Frankfurter:

And that I would be chipping away at it because what I’m very curious about is what you tell us as to the representations made by business on the one hand that the chamber of commerce take any position and labor on the other hand because I should be greatly surprised if labor would want that — wanted — want — would want the Wagner Board, your Board, to settle jurisdictional disputes on the merits. I should be greatly surprised if you could — if professor Cox is quoted as saying that he is free of them, Judge Clark and pull out of there — out of the record, he does not see it?

Dominick L. Manoli:

Well, professor —

Felix Frankfurter:

If however — if however the CIO would want the Board to settle the jurisdictional disputes.

Dominick L. Manoli:

Well, that’s been a question in my mind as to the — whether he really would want to.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Dominick L. Manoli:

However though, Professor Cox has suggested at this Joint Board, that it can resolve many of the these — these disputes and —

Felix Frankfurter:

Namely — I mean what —

William J. Brennan, Jr.:

The Dunlop order.

Dominick L. Manoli:

The — the Dunlop order, they called it —

Felix Frankfurter:

But that’s a different story.

Dominick L. Manoli:

Pardon me?

Felix Frankfurter:

That’s a different story.

Dominick L. Manoli:

Yes.

Felix Frankfurter:

They have a sharing.

They’re involved — they are part of that.

Dominick L. Manoli:

That’s right.

I’m not so sure whether to either the unions or employers who would be willing to have the Board resolve these disputes —

Felix Frankfurter:

Whether on the orders, whether there was any spokesman of the either side, if I may call them side, who indicated the statement in mind of these organized bodies.

Dominick L. Manoli:

I don’t have any, Your Honor but here’s what I do have on the legislative history.

The 1947 House Bill contained a provision which prohibited jurisdictional disputes — jurisdictional strikes over assignment of works — of work.

It did not contain any provision comparable to the Section 10 (k) provision.

The Senate Bill — the Senate Bill did contain a Section 10 (k) provision which had been proposed by Senator Morse but that differs however from the present provision of the Bill in that — in that Section 10 (k) as passed by the Senate, required the Board or an arbitrator appointed by the Board to hear and determine the dispute.

And Senator Morse said that this made for compulsory arbitration of these jurisdictional disputes.

Now, when the thing went to conference — when the — when this Bill went to conference, the conference deleted — deleted from the Senate Bill, the provision empowering the Board to appoint an arbitrator to determine these disputes.

The conference bill came back to the Senate and Senator Morse complained of the deletion saying that the — the result of the deletion would be to put the Board into the arbitration business, a kind of business for — to which the Board had no special competence and for which these procedures were ill-suited.

Now, it is significant to know that after the conference bill was reported out and after Senator Morse had made these objections, the amendment of — to carving out his — his suggestions that none of the proponents of the conference bill shared the view of Senator Mores that this would put the Board into the arbitration business.

Now, I think from this legislative history, you can draw two inferences.

The Court undoubtedly will make its own appraisal of the — of the legislative history but as we see it, the legislative history either means that the Board was put into the arbitration business or — or that Congress, realizing the impact of putting the Board into this form of compulsory arbitration, realizing the impact of that sort of thing upon Section 303, upon the provisions prohibiting discriminations by reason of union membership, realizing those things shied away, shied away from this compulsory arbitration and left the Board to move in an area in which it had some familiarity in which it had some competence, namely whether the assignment was in derogation of a bargaining cert — of a certificate or order within the meeting of the Section 8 (b) (4) (D).

Felix Frankfurter:

(Inaudible) what Senator Morse’s position was?

You — I heard that you’ve said that he was — that this puts the Board into —

Dominick L. Manoli:

In the arbitration.

Felix Frankfurter:

— in the arbitration and therefore, he was opposed to or was he there to come for it?

Dominick L. Manoli:

he — he was opposed to having that part of this original amendment deleted, a part which empowered the Board to appoint an arbitrator.

William J. Brennan, Jr.:

Who assumingly would be specially confident perhaps in —

Dominick L. Manoli:

That’s right.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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William J. Brennan, Jr.:

— the carrier.

Dominick L. Manoli:

The Morse — the Morse Bill said or the Morse amendment rather which the Senate passed said, “Either the Board or an arbitrator appointed by the Board will determine these disputes.

In the conference, the part about or appointing an arbitrator was knocked out and he complained about it that it would put the Board — that the result would be to put the Board in this unfamiliar area of arbitrating disputes.

Felix Frankfurter:

Well, since it cut out the appointment of an arbitrator, well then, I should think — could deduce from that, from Senator Morse’s position that he wanted to put the Board into — that that the result would be to put the Board — make the Board a — an arbitrator, compulsory arbitrator against his wisdom that it should be so.

Dominick L. Manoli:

Well, Your Honor, Senator Morse was the only one who said that and as I say none of the proponents of the conference bill agreed at least vocally in Congress, agreed that this was the interpretation to be put —

Felix Frankfurter:

Well, he was the chairman of the committee?

Dominick L. Manoli:

No, sir.

Felix Frankfurter:

He was there to challenge, did the committee said anything.

Dominick L. Manoli:

There was nothing said about this.

They just made this — this deletion.

The conference — the conference report says “We have adopted the Senate” —

Felix Frankfurter:

Mr. Manoli, before you get to the conference report when the bill was reported out by the labor committee of the Senate, Committee on Labor and Education Boards.

Was anything he said on that subject?

On this, on 10 —

Dominick L. Manoli:

What was said on it that these matters would be arbitrated by the Board or an arbitrator appointed by the Board.

That’s what — that was the proposal.

Senator Morse said that it was a form of compulsory arbitration and it would be done, either by the Board or by an arbitrator appointed, presumably, the Board and invert it —

Felix Frankfurter:

If you cut out —

Dominick L. Manoli:

— appoint the arbitrator.

Felix Frankfurter:

If — if you cut out an appointed arbitrator, if that was cut out why doesn’t that lead the purpose just the Board to do the job.

Dominick L. Manoli:

No, Your Honor.

For this reason that one can no longer be sure that that’s what the conference committee intended because in conference — in conference —

Felix Frankfurter:

Well, what was this section in the House Bill?

Dominick L. Manoli:

Is — the — the House Bill had a broad provision prohibiting all jurisdictional dispute strikes.

It had no Section 10 (k).

Felix Frankfurter:

That’s what I’m —

Dominick L. Manoli:

That’s the reason, the only thing like it.

Felix Frankfurter:

Well, that had to be handed out between the House and the Senate conferees.

Dominick L. Manoli:

That’s right.

Felix Frankfurter:

And the — and the — what light have we besides this thing of Morse’s.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Dominick L. Manoli:

We have nothing else — nothing else but I do want to call your attention to this.

That as I say, we think that the more plausible inference is that Congress shied away from this form of compulsory arbitration because Senator Taft — Senator Taft gave assurances — gave assurances that section 10 (k) and 8 (b) 4 (D) were not to afford avenues of escape to either employers or to unions from the restrictions of the statute against discrimination and employment.

Felix Frankfurter:

Did he make any explicit comment on the argument of compulsory arbitration?

Dominick L. Manoli:

No, sir.

Felix Frankfurter:

Can — the committee, was it?

Dominick L. Manoli:

I don’t know of any —

Felix Frankfurter:

Except this —

Dominick L. Manoli:

I don’t know if there are any comments —

Felix Frankfurter:

But this was his Bill, wasn’t it?

Dominick L. Manoli:

Yes it was but he made — I don’t know of any comment other than this.

There were suggestions that as the Bill came out of conference, it was suggested that it would permit the employer — it would permit the employer by giving work to unorganized class or groups.

It would permit the employer to under mind — undermine the unions.

Felix Frankfurter:

But who — who —

Dominick L. Manoli:

And in his answer to that — in his answer to that, he said that Section 8 (b) (4) (D) and 10 (k) were not to afford an escape from the restrictions against discrimination.

And we say Your Honor, if I may finish it, we say that if the Board is required to arbitrate these disputes in 10 (k) on the basis of tradition, custom or practice, the effect would be to afford the unions and the employers an escape from the — these restrictions against — against discrimination.

Felix Frankfurter:

May I — may I ask you who else dealt with Senator Morse’s argument that this constituted compulsory arbitration?

Who said something about arbitration among the Senators at all?

Dominick L. Manoli:

Oh, there is Senator Ellender had made some remarks along those lines but this was before conference, before conference, before there was —

Hugo L. Black:

What did he say?

Dominick L. Manoli:

Sir?

Hugo L. Black:

What did he say?

Dominick L. Manoli:

He agreed — he agreed with Senator — Senator Morse that the Bill as passed by the Senate would provide for a form of compulsory arbitration.

Hugo L. Black:

Was for it or?

Dominick L. Manoli:

He was for it.

He was for it but when it came out of conference — when it came out of conference as I say, Senator Morse was the only one who — who was complaining about the deletion of the arbitrator and attributed to the bill as it came out of conference of — the Board in the arbitration business.

There are two loose things, if I may wind them up, Your Honor and one is an answer to Senator — Mr. Justice Stewart’s question.

In 1949, when there were hearings before — when the Thomas Bill was passed by the Senate which as I say would have overruled the Board’s interpretation of Section 10 (k).

I wanted to make clear that by the time that Bill was passed by the Senate and that died in the House Committee, the Board had already issued its three initial decisions in this area.

So if the Board’s position was well known in 1949 when Congress — when the Senate passed the Thomas Bill which was — I say if it had passed that, the House would have overruled the Board’s interpretation of Section 10 (k) and — what — my time is up.

Earl Warren:

Mr. Silagi.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Robert Silagi:

Mr. Chief Justice Warren and may it please the Court.

In the hope of presenting a better argument to the Court, Mr. Sherman and I will divide our time.

I will devote my time to a analysis of what we think is the affirmative side of our case, namely the interrelation of Section 8 (b) (4) (D) and Section 10 (k).

The legislative history of the — of the statute, the applicable rules of the Board and the practical interpretation such as the Board says supports its construction.

Mr. Sherman will devote himself to a defensive kind of aspect of our case, namely the relationship of between Section 8 (b) 4 (D) and Section 303 (a), namely the situation which arises in the Juneau Spruce-type situation where an employer sues a labor union for engaging in a jurisdictional strike.

Mr. Sherman will also cover that aspect of the — of our case which deals with the interrelationship of 8 (b) (4) (D) and 8 (a) (3) and 8 (b) (2) in a kind of situation which arises according to the Board’s theory which gives rise to a discriminatory hire if the Board were to follow the respondent’s theory of this case.

At the outset —

Hugo L. Black:

If — if you can discuss the legislative history —

Robert Silagi:

Yes sir, I shall.

I —

Hugo L. Black:

— I presume it would — would it throw you out anyway if you — mention that first?

Robert Silagi:

Yes.

I’d be very happy to.

Hugo L. Black:

That would be just — I was following what the dispute —

Robert Silagi:

I think the — the genesis of — of this particular Section of the Act arises in Senator Morse’s experience as a member of the War Labor Board.

At his suggestion, the War Labor Board enacted as policy the requirement that where there was a jurisdictional dispute between two labor unions, the parties were given 24 hours to resolve that dispute on a private voluntary basis and if they did not, then they were required to submit to arbitration.

And of course, the dispute itself was arbitrated and actual determination was made —

Hugo L. Black:

On the merits?

Robert Silagi:

Yes, sir and that should —

Hugo L. Black:

Though there’s — an award could be made of the job?

Robert Silagi:

That’s correct sir.

Now —

Felix Frankfurter:

During the war.

Robert Silagi:

Yes, sir.

Felix Frankfurter:

During the war.

Robert Silagi:

That’s correct sir.

Now, when Senator Morse introduced his bill into the Senate, he embodied the same concept into his bill requiring, first, voluntary settlement within a period of 10 days and then if the parties could not resolved their own dispute, then the Board was empowered to determine the dispute out of which the unfair labor practice arose, namely this very jurisdictional dispute.

He also provided that arbitration was to be a — a part of his bill on the theory that private arbitrators had a greater expertise in areas of this kind than the Board itself had.

As has been related here, the House adopted a rather unsophisticated approach to this problem and they imposed a flat ban on jurisdictional strikes.

The Senate adopted Senator Morse’s ideas on the subject and interestingly, they not only said that the Board is empowered to hear and determine the jurisdictional dispute out of which the unfair labor practice shall have arisen but they added the words “and directed” so that there was no choice on the part — part of the Board to hear or not to hear a jurisdictional dispute.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Robert Silagi:

They were compelled to under the terms of Senator Morse’s bill which then was passed by the Senate and the same arbitration — private arbitration provisions were retained in the bill.

Now, the conference committee, to whom this was referred, followed the Senate Bill but it did two things.

It widened the scope of the jurisdictional dispute previously under the Morse bill.

It had been limited to two unions and now, it was broadened to encompass class, craft etcetera and it eliminated from Section 10 (k) the provision for private arbitration.

Now, in answer to the question —

Hugo L. Black:

What did that leave — what did that leave when they eliminated the provisions for private arbitration?

Robert Silagi:

It compelled the Board to act as the arbitrator.

Now, the — the question has been asked earlier of Mr. Manoli who was in favor of this aside from Senator Morse and I have — Mr. Manoli answered that Senator Ellender spoke in favor of this concept.

In addition to which Senator Murray also stated that Section 10 (k) required the Board itself to arbitrate the work task jurisdictional disputes.

Hugo L. Black:

Was he the chairman at that time?

Robert Silagi:

I believe that he was not, sir.

I (Voice Overlap) —

Hugo L. Black:

Who was the chairman?

Felix Frankfurter:

Senator Taft was.

Robert Silagi:

Senator Taft was.

Hugo L. Black:

At that time, Senator Taft.

Robert Silagi:

Yes sir.

Now, that this is the — the (Voice Overlap) —

Felix Frankfurter:

(Voice Overlap)

Potter Stewart:

And how that was — excuse me.

Felix Frankfurter:

So that these to a minority view both Senator Ellender and Senator Murray’s minority views.

Robert Silagi:

Well, it is the minority —

Felix Frankfurter:

I beg your pardon.

They are viewed by minority members of the committee.

Robert Silagi:

That is correct.

Nevertheless —

Potter Stewart:

May I — just a moment —

Robert Silagi:

Yes, sir.

Potter Stewart:

May I — were Senator Murray’s views expressed before the — before the conference between the House and the Senate (Voice Overlap)

Robert Silagi:

They were expressed at the time the conference committee became the Act.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Felix Frankfurter:

Became what?

Robert Silagi:

The — the — at the time — at the time the conference committee bill became the Act, this is a discussion on the — on the —

Felix Frankfurter:

You mean when the conference report came before the Senate, they addressed themselves for the — to the problem which came out of the conference committee?

Robert Silagi:

Yes, sir.

Hugo L. Black:

Was he, Senator Murray, a member of the conference committee?

Robert Silagi:

Yes, sir, he was.

Potter Stewart:

Because so far as the — who in the Senate was — before the original idea of having a — of giving the Board power to appoint arbitrators, the answer is that a majority of the Senate was.

Robert Silagi:

That is correct.

Potter Stewart:

I mean has to.

Robert Silagi:

Yes.

Now these very same ideas were borne out by the veto message of — of President Truman.

President Truman objected to this Section of the — of the Act on the theory that in order to invoke the processes of the Labor Board, it would be necessary that the union strike.

Then he went on to say, “This peculiar situation arises from the fact that the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes of or boycotts.

So it was quite clear at least in President Truman’s mind that it was the Board itself that was going to make the determination as an arbitrator.

Later on, under the discussion and the debate on the veto message, nobody, whether in favor or opposed to this bill had any doubt about the duty of the Board to settle the work allocation which was in dispute.

And the fact that the — the — there had been a deletion of the provision to require private arbitration, did not in itself change any of the substantive functions of the Board requiring a Board to make this arbitration award.

Felix Frankfurter:

Was the President Truman’s veto — would this authenticate an item included in President Truman’s veto message?

Robert Silagi:

Yes, sir.

Felix Frankfurter:

What did he say about it?

Robert Silagi:

Well, this is — this was his objection.

The fact that in order to invoke the processes of the Board in order to settle a jurisdictional dispute, the union was first required to engage in a jurisdictional dispute which everyone agreed was wrong or something that had to be avoided.

Apparently, the theory was that —

Felix Frankfurter:

— I don’t follow that because it grew out of the jurisdictional event.

You are dealing with ab initio with the jurisdictional route.

Robert Silagi:

That’s correct sir.

The President’s view on the matter, as I interpret them, would have required that there be some other kind of procedure to get before the Board itself without requiring the Union to engage in a strike such as you have a — a Section 9 petition which permits the Board to make a determination or representation of matters.

I assume the President would have preferred that a similar kind of procedure be enacted in to the law and this is what he objected to, the fact that it had become —

William J. Brennan, Jr.:

Well, it — would you mind reading that — those words of his again Mr. Silagi, from the veto message?

Robert Silagi:

Yes.

William J. Brennan, Jr.:

I didn’t quite get that impression if it from what you read us.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Robert Silagi:

It says, “This peculiar situation, referring back to the fact that the unions would have to strike in order to invoke the settlement of jurisdictional dispute.

Felix Frankfurter:

Why would they have to?

Robert Silagi:

This is the only way you can get before the Board, Your Honor.

(Inaudible)

Robert Silagi:

On the 10 (k), the only way you can get the before the Board is if someone, an employer, or a union files a charge of unfair labor practice pursuant to Section 8 (b) (4) (D).

There is no other way of getting before the Board.

But — but what — I still think of settling without striking.

You settle it by obedience.

Robert Silagi:

Well —

Or they could settle it to a voluntary arrangement, either see the unions.

Robert Silagi:

May I refer then, Your Honor, to the —

William J. Brennan, Jr.:

Well, would mind just reading me that language in the reprinted [Laughter]

Robert Silagi:

Yes, certainly.

“This peculiar situation arises from the fact that the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes or boycotts.

William J. Brennan, Jr.:

Well, now, is that anything more than just the very language of Section 10 (k) itself?

How does that advance?

Robert Silagi:

I think it —

William J. Brennan, Jr.:

Or that does not, it was intended that they should be —

Robert Silagi:

I think this —

William J. Brennan, Jr.:

Or it should have the power to arbitrate.

Robert Silagi:

I think this indicates to the President’s mind that the Board itself was given the authority to arbitrate.

William J. Brennan, Jr.:

Isn’t that the very language we have to construe here it to determine jurisdictional disputes?

Robert Silagi:

Yes, it is.

In answer to —

Hugo L. Black:

Could you read — the Senate to me the preceding letter in the veto?

Robert Silagi:

I’m sorry.

Hugo L. Black:

You have it here, do you not?

It’s on page 19 of your brief, it’s immediately preceding to the one you’ve just read.

Robert Silagi:

Yes.

Well if I may read the — the quotation again, President Truman said, “The bill would force unions to strike or to boycott if they wish to have a jurisdictional dispute settled by the National Labor Relations Board.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Robert Silagi:

This peculiar situation results from the fact, the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes or boycotts.”

Felix Frankfurter:

But that’s a — as Mr. Manoli suggested that the Board’s construction settles this jurisdictional dispute before it makes the employer’s selection with determinative things.

Robert Silagi:

Well, this is of course what we disagree with.

Well, I’m — and may I —

Felix Frankfurter:

The thing is that — that if we construe it, the Board’s role would settle the jurisdictional strike —

Robert Silagi:

No, sir.

Felix Frankfurter:

— jurisdiction controversy.

Robert Silagi:

No, sir.

I — may I refer to the peculiar facts of this case to show you why and perhaps to — to indicate the just — Mr. Justice Whittaker why — what the Board did in this case did not determine the dispute.

Here was a situation where two unions, the stagehands union and the technicians union, both having contracts by — for the instillation and operation of a certain work task, namely lighting equipment.

I might say that only the technicians union had a certification.

The unions involved had each requested CBS to negotiate into their contracts a specific clause which would cover this disputed work.

CBS refused to do this on the theory that it could not make an affirmative award of jurisdiction to either of the competing unions in the face of conflicting claims.

This is all set forth in the record.

Now, you might ask, if this is the situation and if the technicians union has a certification, why then did not the — the technicians union go to the Labor Board and ask for a clarification of its certification?

In the Board’s brief, they quote Senator Taft.

They’re saying this is a permissible thing to do.

The answer to that is that Senator Taft was — was wrong.

It just can’t be done and the Board itself has on many occasions stated that a representation preceding any clarification of a representation certification is not the proper method to settle a jurisdictional dispute.

So the only way, the parties in this case, and the only way the — the technicians union could get its dispute settled is by striking.

Now, I should like to address myself —

Felix Frankfurter:

Well, after all, we’ve all known about outlaw strikes.

It doesn’t — no modes of settling conflict between two people.

Is that absolute guarantee that that was the — the determination of the disputes by process of laws, the call will settle that, but in the normal instances, if — if this is thrown back upon the employer and it makes a choice and the union chose — does not chooses and then refuses to abide by it, that’s a — just one of the — disregards of what the legal process is.

Robert Silagi:

Well, in this case, CBS did not make a choice or it made an inconsistent choice.

Felix Frankfurter:

Well, I’m – I understand that.

In this case, they — they didn’t make a choice.

That’s not the normal instance — normally if — is that the normal situation?

Do you think this is a typical situation?

Robert Silagi:

Yes, sir.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Robert Silagi:

I think this is a typical situation in a case where both unions have contracts and the employer either is completely neutral and refuses to make a — a choice or as in this particular case, he does make a choice but he does it inconsistently as the Court of Appeals in the Second Circuit pointed out in its decision and this is contained in our record while we were in the very midst of handling this case before the National Labor Relations Board on the Section 10 (k) proceeding and in the midst of the Section 8 (b) (4) (D) hearing, CBS made a — an assignment of the identical work in a different manner.

This was in relation to the — to the show which occurred on board the Steamship United States where —

Felix Frankfurter:

In — in short, it settled a dispute of — by — at least — by deciding it wasn’t an either or but there was (Inaudible), isn’t that right?

Robert Silagi:

Well, there are only two unions involved here which could possibly have done this work in — and CBS on one hand in 1957, decided that the work belonged to the technicians and then in 1958, in the identical situation, decided that it belonged to —

William J. Brennan, Jr.:

Decided — decided to belong to be decided that this is one way to keep peace.

One job for one and the other jobs (Voice Overlap)

Robert Silagi:

Perhaps it kept a scorecard but this is not the way to keep the peace because this doesn’t settle any assignment.

William J. Brennan, Jr.:

You think in this instance?

Robert Silagi:

No, no, sir.

Charles E. Whittaker:

Mr. Silagi.

Robert Silagi:

Yes, sir.

Charles E. Whittaker:

Please tell me if there had been no appeal from the Board’s order here or the Court of Appeals had affirmed before it reversed it, would that have settled the dispute?

Robert Silagi:

I don’t think it would have settled the dispute.

Charles E. Whittaker:

I mean nevertheless, than it’s settled.

Let me use the language of the statute, determine the dispute?

Robert Silagi:

No, sir.

I don’t think so.

Obviously —

Charles E. Whittaker:

What — what dispute would have — what part of the dispute would – thus has not been determined?

Robert Silagi:

The underlying jurisdictional dispute is the home this work belonged.

Charles E. Whittaker:

Well, that’s another dispute isn’t it?

Isn’t that another dispute?

Robert Silagi:

Well what —

Charles E. Whittaker:

The dispute that was before the Board was whether you were entitled to this work.

The employer said no, you said yes, isn’t that right?

Wouldn’t that be a dispute?

Robert Silagi:

Yes, sir.

Charles E. Whittaker:

Now, was that dispute determined by this order of the Board?

Robert Silagi:

The Board pursuant to this —

Charles E. Whittaker:

Assume there had been no appeal?

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Robert Silagi:

The Board’s order merely determined in effect from the Section 10 (k) order or the decision and determination, simply determined that the technicians union had violated Section 8 (b) (4) (D) which was not the proper thing for it to determine.

The proper thing for the Board to determine in Section 10 (k) was a determination of the jurisdictional dispute itself, namely to whom does this work alone.

Charles E. Whittaker:

Well, on that — that that maybe to engraft a new question on to the original question as to whom the — the work belonged.

Was not the dispute, existing between CBS and the electrical workers, the latter claiming the work and CBS denying that they were entitled to it, wasn’t that the dispute?

Robert Silagi:

Yes, sir.

Charles E. Whittaker:

Now then, the electricity — electricians were ruled not to be entitled to it.

Now, if that was the final judgment, would that not determine the dispute?

There maybe other disputes but not that one.

Robert Silagi:

In that limited sense, I think that — that you’re right.

It would’ve determined that very limited dispute.

Charles E. Whittaker:

Well then, doesn’t that discharge fully the duties of the Board under 10 (k)?

Robert Silagi:

No, sir.

I — I respectfully disagree.

Charles E. Whittaker:

Well, — well I am seeking enlighten.

I don’t know but I’m just asking you.

Robert Silagi:

I think the Board itself has shed some light on this problem in its very first decision involving Section 10 (k) in the Moore Dry Dock Company case where it is said — describing the functions — describing its — describing its own functions under Section 10 (k) that “this proceeding being under Section 10 (k) has as its sole object, the determination of the dispute.

It is not an unfair labor practice proceeding at this stage.

The Act purposefully postponed that to a subsequent thing.

It is not a representation proceeding requiring certification of representatives.

There is nothing in Section 10 (k) which either expressly or by implication, requires the Board to follow the procedure set forth in Section 9.

Rather, it is a proceeding intended for the resolution of the disputes arising under Section 8 (b) (4) (D) as the language of Section 10 (k) plainly states.

And in that case, the very first case which the Board decided, the Board did what the respondent claimed it should do, namely, it made an award.

And the Board said that the international association does not entitle to require the employer to assign machinists to its members and the Board went on to say that the United Steel Workers was entitled to have the employer assign machinists — machinist work to its members.

(Inaudible) 49 decision?

Robert Silagi:

Yes, sir.

That was in March 1949 and this occurred six days prior to the Thomas Bill which is mentioned before.

So that at that time, Congress was considering the Thomas Bill, the only decision which it had from the Board, was one which is consistent with what the respondent believes is the proper determination.

Now, the Board finds itself, in our opinion, in a dilemma with respect to contracts.

It is obvious that nothing in the Act relates to contracts per se.

The Board is simply entitled to make a determination or the — the exception clause rather besides that it is an unfair labor practice for a jurisdictional dispute to occur unless there is a Board order or certification.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Robert Silagi:

Now, in order to come out with the right result, the Board has adopted incorrect reasoning we believe and it says that in a situation such as arises in the Winslow Bros. and Smith Company case where there are two unions involved, each having contracts then in that kind of a situation, if the strike occurs and there’s a contract to support it then it too becomes a part of the unless clause.

Obviously, this is a piece of administrative reply act which finds no warrant in the — in the statute itself, but the Board is compelled to adopt that kind of a position, it has no choice and this is what it has done.

I should like to address myself for just a moment or two to the Board rules and regulations covering this aspect and this I think will shed light on what was a contemporaneous construction at the time the 1947 Act was passed and to also show what the Board felt.

The Board’s brief recites the fact that its contemporaneous construction and consistent construction has been in a manner which is now says is the correct implication.

But nevertheless, back in 1947 when the Taft-Hartley Act was fresh in everyone’s mind, the Board did adopt a regulation, Section 102.73 which you will find in the respondent’s brief at page 8 (a) and I shall quote only the salient words.

Potter Stewart:

What page is that?

The —

Robert Silagi:

8 (a) of the appendix, sir.

Potter Stewart:

Oh, alright.

Robert Silagi:

The Board regulation reads as follows, “Upon the close of the hearing, the Board shall proceed to certify the labor organization for the particular trade, craft or class of employees as the case may be which shall perform the particular work tasks in issue or to make other disposition of the matter.”

We think this is quite clear on its face as to what the Board construed its own powers and duties to be.

But it if — if it is not sufficiently clear then I ask you turn to the following page 10 (a) wherein the Board recites its statement of procedure explaining the very same Section of the Act.

This is found at the bottom of the page, Section 101.30 and I will read only the salient words again.

“The Board then considers the evidence taken at the hearing and the hearing officer’s analysis together with any briefs that may be filed and the oral argument if any and it shows that certification of the labor organization or the particular trade, craft or class of employees which shall perform the particular work tasks in issue.”

It is significant that in the statement of procedure, the Board even omits the language which is contained in its rule which says, “To make other disposition of the matter,” and I think it’s quite clear from both the rule and from its own statement of procedure that at the time this statute was enacted, the Board itself felt that it had a — an — an obligation to make an affirmative determination with respect to a jurisdictional dispute.

John M. Harlan II:

Is there any other Court of Appeals or District Courts besides the Fifth Circuit (Inaudible)

Robert Silagi:

No, sir.

I know of none.

John M. Harlan II:

That’s the only case?

Robert Silagi:

The Second Circuit —

John M. Harlan II:

Second —

Robert Silagi:

— Third Circuit and the Seventh Circuit have ruled contrary.

John M. Harlan II:

Has the District Courts (Inaudible)

Robert Silagi:

The District Courts helped get into this (Voice Overlap).

Thank you very much, I shall now ask Mr. Sherman to continue.

Louis Sherman:

If it please the Court.

I would like to touch on a few small items that became involved earlier; first, the matter of terminologies.

I think the word dispute has to be contrasted with the words unfair labor practice.

Section 8 (b) (4) (D) makes it an unfair labor practice and I refer to page 6 (a) of our brief and I’ll skip over to duplicating words engage in a strike for the purpose of forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft or class rather than the employees in the labor organization trade.

That is the unfair labor practice.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

Then there is the dispute which is referred to in Section 10 (k) out of which such unfair labor practice shall have arisen.

Now it is our feeling, is that in this case, the act of the local union of the IBW in resisting the employer’s assignment would come, if it all, under the unfair labor practice section and that the word dispute is a dispute between the IBW on the one hand and the IA on the other, the international —

William J. Brennan, Jr.:

May I ask, Mr. Sherman, to the definition of the word dispute.

I mentioned earlier the historical fight between carpenters and machinists have no right.

Now, the dispute in that sense, in other words, this has been a — this has been a controversy gone on for decades.

Is it your thought that in an action where the carpenters and the machinists might be in controversy with a particular employer that it was contemplated that the Board resolved that historical dispute over middle right work, so that it will inclusive upon both unions thereafter?

Louis Sherman:

Your Honor, that is correct.

In fact, it will be recalled that in the process of passing this Bill — to begin with, labor did not appear at the hearings.

I don’t think there was any testimony by any of the leaders of the labor organizations.

As I recall it, they took their hands off added to the respect to this matter.

There was a good deal of evidence, however, with respect to the controversy between — I believe it was the carpenters and laborers in New Jersey where a very large scale jurisdictional dispute was then going on.

And as a matter of fact, the employers were coming to watch them at that time with a cry to somebody or to settle this and there was nobody to settle it and there was of course a complete stoppage of work.

Now, then that is dispute we think —

William J. Brennan, Jr.:

I mean that’s — that’s a rather far reaching is it Mr. Sherman?

In other words, the basic underlying controversy between two unions, entirely independent of the employer would be resolved for the two unions nationally and without regard to the employer.

Louis Sherman:

Well, Your Honor, we’re not saying that.

We think the employer would have a part in the resolution of the dispute if he chose to do so.

We believe that the only jurisdictional dispute there can be is the dispute involving the jurisdiction of unions, There is no jurisdiction as between the employer and the —

William J. Brennan, Jr.:

In other words, Mr. Sherman, what — what I’m trying to get at is this.

This controversy — again, I go back to no rights dispute, arises where these two unions may be in the same plant and many sections in the country and there maybe a — a dispute in a particular plant over no rights dispute.

Now, what I’m trying to get to is that it’s your view that the Board is required by 10 (k) to resolve in resolving the dispute in the particular plant, the whole controversy between the two unions everywhere?

Louis Sherman:

No, You Honor.

We do not say that.

William J. Brennan, Jr.:

And so that they don’t resolve — they don’t resolve that which is to say then than a no rights dispute between the two unions, would come up again at another plant and the Board have to go through this all over again?

Louis Sherman:

Well, this of course is exactly the same thing we have today under the Joint Board.

We have job decisions as distinguished from national decisions.

Conceive the situation where there might have been a national decision under the Joint Board, under the National Labor Relations Act.

William J. Brennan, Jr.:

Well of course, the difficulty with the Joint Board arrangement is that by contract, is it?

That’s by agreement (Voice Overlap) —

Louis Sherman:

Yes.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

But I’m trying to explain that even in connection with disputes of that sort, there is this distinct new job decisions and national decisions and I may say there are no national decisions, there are job decisions.

From a practical point of view presumably this would happen here too.

Now, actually, going back again for a moment to legislative history, it is true that we’re talking about minority views but there’s also a fact that in this particular part of the legislation and I think it is somewhat unsophisticated to talk about majority and minority, when the Congress came in that session, there had been, as you may recall, the adoption of the case, bill and veto thereof and a great wave of public opinion, we have to face that now. And the President of the Unite States, Mr. Truman, in his message does not say, “No labor legislation.”

He said, “Yes” at some labor legislation.

Now, one of the things that he proposed was that legislation be enacted with respect to this problem of jurisdictional disputes.

So therefore, it is no accident.

Felix Frankfurter:

And what did he propose?

What did he — in his message to Congress, what was he ready to sign on jurisdictional dispute?

Louis Sherman:

Well, Your Honor, as I recall it, it was not too specific.

Felix Frankfurter:

Alright.

That’s the point about all this business.

Louis Sherman:

Yes.

Felix Frankfurter:

Let me put to you —

Louis Sherman:

Well —

Felix Frankfurter:

I have now examined in the legislative history hastily and therefore — and satisfactorily but this is what I get out of it.

That undoubtedly, the majority brought in a provision to settle jurisdictional controversies by arbitration and placed reliance on an expert arbitrator, not the Board itself.

The minority consisting, you say there was no spokesman for labor, there were no labor spokesman but there was spokesman for labor because of independency, Thomas of Utah, Maria of Montana and Pepper of Florida did express on the whole what they thought was the right way to deal with labor.

Louis Sherman:

You Honor, I was only referring to testimony of the Court.

Felix Frankfurter:

Now, they said the minority’s attack on the majority’s bill was on a broad scope.

They said that so many provisions in your proposal that makes against the desirable trend and what was the desirable trend which case or this deals — made in (Inaudible).

It was undue intervention by government and the Board in particular into labor controversies.

So what I get out of this in general attitude was that there was a specific provision for arbitration through arbitrators, to individual arbitrators.

The minority opposed all kinds of intrusion of that sort.

They opposed every aspect of settlement by — of jurisdictional controversies through arbitration.

The thing don’t — then goes into conference and out of conference comes an excision, a deletion of the right or part of the arbitration business, namely appointment of private arbit — of — of expert arbitrators and we have no light at all as to the meaning of what was left except it was for the courts to determine.

I think that that — that’s right out of the reading of that legislative history.

Louis Sherman:

I think that in this one area, there had been an acceptance on the part of the President and on the part of the Senators in the Committee who were favorable to labor of a necessity for doing something.

Felix Frankfurter:

I find no such reference in the minority report and I’ve read it.

Louis Sherman:

Because they were satisfied, I believe, with the majority’s action.

Felix Frankfurter:

But then that’s the whole philosophy of the majority —

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

In generality.

Felix Frankfurter:

— in taking over interferences with what should be left to the free fighting of labor.

Louis Sherman:

I think Your Honor will find however that in this regard, with respect to the handling of jurisdictional disputes, they were faced, however, with a different problem.

Felix Frankfurter:

I may find it —

Louis Sherman:

There was —

Felix Frankfurter:

— but I don’t find that in the minority report.

Louis Sherman:

No you will not because the majority report stated exactly what they wanted to have happened because the majority committee report S.1126 as reported, contained the very provisions that we’re talking about.

In other words, arbitrators — and to hear and determine dispute power of the National Labor Relations Board and when it was passed by the Senate, it contained those very same provisions.

Felix Frankfurter:

And as to that, there wouldn’t be any — there wouldn’t be any doubt as to what it meant, I think.

What I’m suggesting is that they cut the heart out of it in conference.

Louis Sherman:

Well, Your Honor, I think the issue is whether the deletion of the authority to appoint arbitrators cut the heart out of it in substance and changed the entire picture of 10 (k) or whether on the contrary, all it meant was that an agency for decisions, that is arbitrators appointed by the Board, would not be available and the Board would continue with the task which formerly would have been done at the option of the Board, either by the Board or by the arbitrators —

Felix Frankfurter:

You’ll have to —

Louis Sherman:

— and not because —

Felix Frankfurter:

You’ll have to convince me and others will have to convince me to that.

When they eliminated an effective mode of arbitration, they retained an ineffective, in fact, undesirable mode of arbitration.

Louis Sherman:

This of course is exactly what was said contemporaneously by Senator Morse.

In other words, he thought —

Felix Frankfurter:

Senator who?

Louis Sherman:

— that — Senator Morse and he is important in this because it was his original bill, S.858, which put in these provisions.

As a matter of fact, 10 (k) was written by him as 6 (k) of his bill.

It must be remembered also, I believe, that the really rubbed attitude on the jurisdictional dispute or strike came from the House side, where they would have put down a complete ban against jurisdictional strikes or stoppages for any reasons.

In other words, this process of voluntary agreement that people getting together and so forth would have no meaning because if any union, whether it would be in the no rights of carpenters situation that you put, would strike then that in itself would be illegal.

But if we turn to the language of the bill as adopted by the Senate, it says, “The Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen,” or to appoint an arbitrator to hear and to determine such as disputes, the same language, hear and determine the dispute.”

One case, the Board can do it and also appoint arbitrators and in the final version the arbitrators are out and the Board has this unwelcome job which it has been —

William J. Brennan, Jr.:

But Mr. Sherman, in the veto message of President Truman, you have quoted in your brief one excerpt but I find this — these others in it.

The bill would require the Board to and then quoted the word “determine,” to determine jurisdictional disputes of a work tasks instead of using arbitration, they accepted the traditional method of settling such disputes.

Louis Sherman:

And this of course was the complaint which was that before it could make the determinations rather than having the option of using arbitration —

Felix Frankfurter:

But that would —

Louis Sherman:

— for that purpose.

Felix Frankfurter:

But if the Board settled it on the merits that it would be a form of arbitration.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

That is correct but it would not be done by an arbitrator.

Felix Frankfurter:

You wouldn’t be using — you wouldn’t be using that language instead of the form of arbitration.

William J. Brennan, Jr.:

I think so.

Louis Sherman:

Well, Your Honor, if I may say, I think that the veto message was merely drawing attention to the fact that this available method for disposing of the dispute which they thought superior and one of the main reasons was a time factor, and that’s spread out in the language by Senator Morse, would not be available.

But the —

Hugo L. Black:

Under the Board’s construction, how can a dispute be affected to that and finally settled.

Louis Sherman:

Well, as far as the Board’s construction is concerned in the main it goes to the point that whatever the employer assigns is the answer because if —

Hugo L. Black:

You mean it leased it up, leased the employer the same position he was in before that he has to settle it and he may have — to have gone pointed (Inaudible).

Louis Sherman:

Well, that’s exactly what happened here. I went through the record and there’s some very interesting comments about that from the employer involved, a Mr. Fitz of CBS, where he says that, “Having these conflicting claims, he was in no position to make the decision” and I don’t think he was talking just intellectually or academically.

At one point here, the trial examiner who served the case said, “Mr. Fitz testified very clearly that is between the devil and the deep blue and trying to satisfy both of them.

So that —

Hugo L. Black:

That has been raised in a number of antitrust cases brought before us, has it not?

Louis Sherman:

Yes, Your Honor.

Hugo L. Black:

In connection with these jurisdictional disputes and there was considerable dissatisfaction, although the Congress has had no way to settle it?

Louis Sherman:

That is correct, Your Honor.

I think the typical situation they were talking about was an employer who wasn’t breaking his neck, shall we say, in making decisions between powerful unions as we’re talking to no rights case.

And yet the dispute — now, as we see it from the legislative history and we think it’s born out by it.

What Congress intended was to set up a procedure under which if the thing was serious enough to warrant a strike, that there would be some way of settling not the unfair labor practice.

That would be of adjudicated in accordance with regular procedures, but the dispute out of which the unfair labor practice arose.

In this case, the controversy whether the IA Union or the IP Union should have the work referred to the people that were in it’s bargaining unit or under its contract and although that may seem to be a frightening thought there is an answer to it as developed in the building trades.

There’s nothing to stop the establishment of a voluntary body for settling those disputes.

Hugo L. Black:

That wasn’t before, was there?

Louis Sherman:

No Your Honor, but frankly and clearly, what the Congress did here did help to place impetus behind the establishment of a voluntary body and there were two reasons for it.

One was the language of the Act and the other was this very thing that’s been mentioned which is a desire of the parties, particularly in the building trades not to have their disputes settled by the National Labor Relations Board.

But that does mean that because they desire it both management and the labor, let us say, that that changes the statutory provisions of the Act or the legislative history thereof.

There were two things they didn’t want to have happened.

Now, actually there’s one aspect of it if I may say in connection with this Joint Board and which is spread in our brief.

That their problem today is what to do about the employer who decides to take advantage of the Board rule and what is the Board rule?

Board rule is that if the employer assigns the work then we’ll have an inquiry as to whether there is an order of certification which let’s say in this industry there is none, but they don’t have certifications.

Now, under those circumstances, an employer does not have the incentive to become a part of this voluntary arrangement because he can by assigning, get the full support of the federal government to restrain any conduct in violation of that assignment.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

In other words, there is no play on that basis for the development of a voluntary solution of the problem.

And as I say, we set that forth in the appendix of our brief which is the position of the Joint Board.

We assumed, talking about these policy considerations, that if the National Labor Relations Board recognized to have this function but then, either one or two things would happen.

The employers will now — do not wish to bind themselves, the Joint Board procedure would do so or if they didn’t, there would be a proceeding before the National Labor Relations Board.

William J. Brennan, Jr.:

Well, wouldn’t the Joint Board out of business?

Louis Sherman:

No, Your Honor.

William J. Brennan, Jr.:

It does not?

Louis Sherman:

As a matter of fact, the Joint Board plan just to see —

William J. Brennan, Jr.:

I mean if the — if the Board were to take on the work which the Joint Board is now doing, is there any reason for the Joint Board to continue (Voice Overlap) —

Louis Sherman:

Well, they think they have the — every reason in the world.

In other words, the parties would rather have their affair settled by the industry than they would, the (Inaudible)

William J. Brennan, Jr.:

I thought — I thought what you just suggest to us whether employers would have no incentive to the members of the Joint Board.

Louis Sherman:

Yes.

William J. Brennan, Jr.:

They provoked these disputes merely by work assignments (Voice Overlap) —

Louis Sherman:

Well they wouldn’t be doing to provoke the dispute.

What we’re saying that since they have, under the Board rule, a naked power to assign whichever way they assign, however arbitrarily, however capriciously and then get the support of the federal government to suppress the labor activity that may result from that assignment that that can be a better position from their point of view in submitting to either the Joint Board or submitting to the — National Labor Relations Board.

Felix Frankfurter:

Before you sit down, I hope you will deal with the question that Mr. Manoli raised, namely as to standard by which the criteria on the basis of which the Board is to become the arbitrator if that (Inaudible)

Louis Sherman:

Well, Your Honor —

Felix Frankfurter:

You don’t have time but I would like to hear you before you sit down.

Louis Sherman:

I will try to answer that right now.

Certainly, if this hearing were being held at the beginning of the administration of the Wagner Act, it will be difficult for anyone to answer that question in terms of, shall we say, how are all the appropriate unit questions are going to come up in the multiplicity of American industry going to be decided, particularly since those issues were new issues as distinguished from jurisdictional dispute matters which have been decided and which exists the very real things for many, many years.

Felix Frankfurter:

You mean — you mean the private arbitrators.

Louis Sherman:

Yes, there has been no governmental action of this sort.

Felix Frankfurter:

But if — if there’s a history of jurisdictional settlement?

Louis Sherman:

Yes, Your Honor.

Felix Frankfurter:

Well —

Louis Sherman:

And I think the standards that would apply, I would certainly hesitate to define each and every one of them but it seems to me that there could be developed a series of sensible approaches to that problem just as we did with the unit questions under the Act, but it would not just be custom and practice —

Felix Frankfurter:

And they’re — and they’re very —

Louis Sherman:

— Your Honor because actually —

Felix Frankfurter:

They’re very different. (Inaudible)

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

Well, I think they are very —

Felix Frankfurter:

Whether you should have gone to that —

Louis Sherman:

— they are very different in legal — in legal —

Felix Frankfurter:

Well, you should have 30 or 100 of who should be included in a — under the same roof within the same legal unit is something different than whether the electricians’ electrical work should have it or the carpenters should have it.

Louis Sherman:

I agree with their complete — they’re different questions.

As a matter of fact, this Board here argues its position with respect to certifications and it rules that a certification of a bargaining unit has nothing to do with work tasks.

That’s in the Plumber’s case and in General Analog.

They are different but they are the same in this sense only, Your Honor that there will have to be some work done with respect to development of appropriate standards.

What I’m suggesting is that — that work will be much easier in this field.

I’m not talking about the consequences. The work will be easier in this field because they have something to work on.

Your Honor, permit me, we’ve had — this reference made the National Labor Board and I’ve gone back to those decisions.

The New York Telephone Company case, other cases, those were straight out jurisdictional disputes which during the war, were handled on the basis of an arbitration and this was certainly in Senator Morse’s mind when he was the one who advanced the idea.

It did not come from Mr. Hartley, did not come from Mr. Taft.

It came from Senator Morse and it was, I think, pursuant to the presidential action in his message.

Felix Frankfurter:

I — I submit again that what he had in mind is a very different thing that was finally eventuated.

Louis Sherman:

Well, I suppose that is — that is — that’s —

Felix Frankfurter:

I should think and do you think here and out of the war whereby, jammed around and I think they even – we’re going to settle this, this afternoon.

It’s a very different thing from the day to day job for the board.

Louis Sherman:

Well it’s a —

Felix Frankfurter:

I’m not saying you’re wrong.

I — I — my mind is quite —

Louis Sherman:

Well, if —

Felix Frankfurter:

— caught.

Louis Sherman:

If —

Felix Frankfurter:

But all I’m saying is that you’re imposing a very different responsibility on the Board, then — then Senator Morse’s (Inaudible)

Louis Sherman:

Well — well, I’m saying Your Honor, I wouldn’t borrow that.

All I’m saying is that that’s what he had in mind when he made his —

Felix Frankfurter:

He failed in his endeavor.

Louis Sherman:

I would —

Felix Frankfurter:

He failed in his endeavor.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

I must respectfully differ Your Honor because you will find, if you compare the language of Section 6 (k) of S.858 which is his bill, with 10 (k) which is the Act that you will find omitted only the optional authority to appoint arbitrators.

Felix Frankfurter:

Well, I think that’s the crucial thing Mr. Sherman.

That to me is so decisive. It had something to do with these matters in the First World War.

It makes all the difference in the world.

You can get the whole momentum of the White House across the street from you as I had and you know that — that you can make the kind of speech that you ought to make and there’s war going on and there were specialists doing it.

I don’t think the Labor Board — the National Labor Board is a specialist in this domain.

Louis Sherman:

Well it has become a specialist to great many, Your Honor.

I don’t question that.

Hugo L. Black:

May I — I hope you just — it’s alright.

I can’t understand the statement that this — the heart of it was taken out.

As I understood you, I’m not sure, Senator Morse offered a bill with two alternative methods to settle the jurisdictional strike.

Is that right?

Louis Sherman:

The jurisdictional dispute.

Hugo L. Black:

One of them wants to submit it to the Board to settle the dispute and one of them wants to submit it to arbitrators.

Is that right?

Louis Sherman:

Yes Your Honor.

Hugo L. Black:

And there was left in, the provision which were — left it to the Board.

Louis Sherman:

That is correct, Your Honor.

Hugo L. Black:

Well now why — why could anyone — I could (Inaudible) said, I don’t understand it how the mere fact that he failed to get both and they — they refused to accept both but did accept one.

Louis Sherman:

And there wasn’t a person, Your Honor who stood up and said that the effect of this was anything other than the elimination of this option to appoint an arbitrator.

Hugo L. Black:

I can understand —

Louis Sherman:

To do that which is to argue —

Hugo L. Black:

(Inaudible) argument against its reasonableness, in fairness, in the way of doing it.

What I can’t understand, why wouldn’t they have two methods suggested.

They got one that takes out the other.

Felix Frankfurter:

Who has to appoint the arbitrator?

Louis Sherman:

I beg your pardon?

Felix Frankfurter:

Who has to appoint —

Louis Sherman:

The Board.

Felix Frankfurter:

The Board.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

Yes, Your Honor.

Felix Frankfurter:

That’s the point.

Charles E. Whittaker:

Well isn’t —

Felix Frankfurter:

It makes all the difference in the world and not —

Louis Sherman:

It would be a government arbitrator.

That’s right.

Felix Frankfurter:

If — if all the difference, for one, for the Board to appoint an arbitrator than for it to do the job.

Louis Sherman:

Well, the language —

Felix Frankfurter:

I can assure you there are great differences.

Hugo L. Black:

There’s a big difference in the policy in issue isn’t it?

But what’s the difference so far as the law is concerned, so far as we are concerned in construing it.

If they — if he offered to have it done, settle about one or two ways, if Congress refused to accept one of his ways, how can we, without trying to take over the function of the legislature, say that we want to enforce them both.

Louis Sherman:

Well, actually, the conflict came between the House bill on the one hand which was intended and — and in this regard, it was different from the war, a restrictive legal prohibition against any form of jurisdictional strike is quite no matter what —

Hugo L. Black:

Is that — is that where Senator Taft offered the bill originally?

How did he offer it originally?

Was it the outlaw jurisdiction as all together?

Louis Sherman:

I don’t believe so.

Hugo L. Black:

What did he provide about?

Louis Sherman:

I don’t think he had anything and I think this was added by Senator Morse prior to the bill — let me get straight.

Senator Morse’s bill came in, in March.

The bill was reported.

The Taft bill was reported in April and the Taft bill as reported contained the language which is pretty close to what we have now and it contained specifically the item on arbitrators.

Well as you first have the Morse’s bill in March of 1947 then you have the Taft Bill as reported by the Committee.

I’m not sure about what bill he made for this.

Hugo L. Black:

You’re not sure what’s contained in first.

Louis Sherman:

I beg your pardon.

Hugo L. Black:

You’re not sure what it contained in first?

Louis Sherman:

No.

I’m sure he didn’t have (Inaudible) anything in here until Morses came forward with the proper issue.

Felix Frankfurter:

Mr. Sherman, if you have a statute, if you have a proposal, and then Senator Morse (Inaudible) that the borad should give a determination or appoint an arbitrator to hear and determine, that vary to appoint an — an arbitrator arbitrates and they – there you’ve got a definition to — is the very characterization of the official, but with that cut out, you haven’t got any definition as to an arbitration.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Louis Sherman:

Well if Your Honor please, we look at the language.

The Board — and this is 10 (k) that the bill has — and as passed.

“The Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen or to appoint an arbitrator to hear and determine such dispute unless within 10 days and so forth upon compliance by the parties to dispute with the decision of the Board, or the arbitrator appointed by the Board.”

Now then, we’ve got to find a dichotomy here where we’re talking about the decision of the Board meaning one thing and the decision of the arbitrator meaning another thing and the very sentence which gives them exactly the same effect.

If I may suggest Your Honor, leaves me simpler to say that all that happened here was — they decided for good or for bad, but instead of having these matters decided by arbitrators at the option of the Board, they want to put the whole job in the hands of the Board.

Charles E. Whittaker:

Is this not what that language really means?

He’s got any proceeding here shall be through the Board.

It may act itself or it may appoint an arbitrator to do so.

Now, the conference struck out the alternative leaving as the statute now leaves the language, the Board is directed to determine the dispute.

Isn’t that right?

Louis Sherman:

That’s correct Your Honor.

Charles E. Whittaker:

Whereas all by striking out this alternative, they didn’t — the one they didn’t weaken the other, did they?

Felix Frankfurter:

By rephrasing a provision of the statute which is ambiguous and making it clearer, you do not necessarily answer the question as to what the unclear provision means.

I mean —

Louis Sherman:

Well, of course we have contemporaneous —

Felix Frankfurter:

— the statute doesn’t read that Justice Whittaker has stated it.

That is the way the statute reads out, you wouldn’t be here —

Louis Sherman:

That is correct.

Felix Frankfurter:

— because Board would have acted differently.

The statute doesn’t say or didn’t say, “The Board shall have power either to do this directly or appoint an arbitrator and then struck it out.”

That isn’t the language.

The language was very different and they struck out that (Inaudible) — which there was the severest attack without telling it as to why they struck it out and what they left.

Charles E. Whittaker:

And wasn’t that language very different?

I’d — I — I understood that it’s so.

I still —

Louis Sherman:

Your Honor, it wasn’t very different as far as I can see, just took out the words or to appoint an arbitrator.

Felix Frankfurter:

But I’ve suggested to you, if you leave in the word or to appoint an arbitrator one knows what an arbitrator does.

But the words to hear and determine still not leave you to determine what the scope of the determination should be.

Louis Sherman:

Well, it seems to me —

Hugo L. Black:

What I’m saying is you do it by arbitration or to say for — that the Board doesn’t.

Audio Transcription for Oral Argument – November 14, 1960 (Part 2) in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

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Charles E. Whittaker:

But many statutes —

Louis Sherman:

Well, even — even arbitrator is merely described.

In other words, it’s as if ad hoc individual as distinguished in the five-man board more an arbitrator if you will, but the function is the same to hear and determine the dispute out of which the unfair labor practice arose.

Hugo L. Black:

I guess the object is the same too to get those jurisdictional disputes settled.

Louis Sherman:

Yes, because I do think that the Congress was perhaps a little more far seeing than the Board.

They knew about these disputes.

They’re tough and all that sort of thing, but nevertheless, just as they believe, people can refuse to settle on any basis that strikes to recognition would be lessened if there were certifications.

I — after all, the certification is just a piece of paper too, but people tend to accept these things.

But so here with jurisdictional disputes, that if there was somebody or something or some board, which would actually decide the jurisdictional dispute that that would tend to reduce the dispute.

Of course that’s what we found on the Joint Board, that’s a private party which has done that.

The problems in the relationship between that Joint Board and the National Labor Relations Board as I say covered.

William J. Brennan, Jr.:

I notice Mr. Sherman that in the preamble to the agreement that created the Dunlop Board back in 1948, recited, desired to provide for a final and authoritative disposition of such disputes by an impartial but informed tribunal that is fully familiar with the industry and its method and problem and thereby, so far as possible to avoid burdening the National Labor Relations Board with the disposition of such disputes under the provisions of 8 (b) (4) (D) and 10 (k).

Louis Sherman:

That shows, Your Honor, that they had in mind this very thing that we’re talking about because the kind of dispute they were going to settle was precisely the same kind of dispute they thought the Board was going to settle.

William J. Brennan, Jr.:

In that article — article —

Louis Sherman:

As a matter of fact, in the last paragraph on this —

William J. Brennan, Jr.:

Article 8 says, “It’s the sense of the party that the members and chairman of the Joint Board shall tender to the National Board —

Louis Sherman:

That’s —

William J. Brennan, Jr.:

— their services as expert witnesses in any hearing held by that Board under 10 (k).”

Louis Sherman:

Yes, Your Honor.

That — that was what I was going to add.

Earl Warren:

Very well.