National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

PETITIONER:National Labor Relations Board
RESPONDENT:Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO
LOCATION:Braunfeld’s furniture store

DOCKET NO.: 69
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 364 US 573 (1961)
ARGUED: Nov 10, 1960 / Nov 14, 1960
DECIDED: Jan 09, 1961

Facts of the case

Question

  • Oral Argument – November 14, 1960 (Part 2)
  • Oral Argument – November 14, 1960 (Part 1)
  • 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
    Audio Transcription for Oral Argument – November 14, 1960 (Part 1) 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 10, 1960 in National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO

    Earl Warren:

    Number 69, National Labor Relations Board, Petitioner, versus Radio and Television Broadcast Engineers Union.

    Mr. Manoli.

    Dominick L. Manoli:

    Mr. Chief Justice, may it please the Court.

    This case is here on writ of certiorari to the Second Circuit.

    In general, the case deals with the function of the National Labor Relations Board in administering the so-called jurisdictional disputes provisions of the National Labor Relations Act and the disposition which the Board is to make of these disputes under the statute.

    Section 8 (b) (4) (D) of the statute makes it an unfair labor practice for a labor organization to engage in a strike on a work stoppage to force an employer to assign particular work to the members of a labor organization — the members of one labor organization for trade or craft or group rather than to those of another, unless the employer is failing to conform to a Board order or certification determining the bargain representative of employees performing such work.

    Section 10 (k) of the statute provides that whenever there is a charge alleging a violation of the Section 8 (b) (4) (D), the Board is empower — is empowered and directed to hear and determine the dispute ought of which the unfair labor — the alleged unfair labor practice arose, unless the parties have agreed upon voluntary methods for the settlement, the adjustment of the underlying dispute.

    Now, these provisions of the statute have given rise to two schools of thought, as to the function of the Board in adjusting these jurisdictional disputes in the absence of a preexisting Board order or certification within the meaning of Section 8 (b) (4) (D).

    Three Circuit Courts of Appeals have held that Section 10 (k) requires the Board in the absence of a Board order or certification within the meaning of 8 (b) (4) (D) that Section 10 (k) requires the Board to arbitrate the dispute.

    And on the basis of such matters as tradition, practice and custom, to affirmatively award the work to one union to the members of one group or the others.

    Now, the Board on the other hand and the Fifth Circuit and perhaps the Ninth Circuit have taken the position that the Board discharges its function.

    In such, under Section 10 (k) when it determined solely whether the disputed assignment of work is in derogation of a Board order or certification within the meaning of Section 8 (b) (4) (D) and as I shall explain later in derogation of a collective bargaining contract covering the assignment of this work.

    Now, the question before this Court in these cases is which of these views is the correct view.

    Now, the facts which give rise to this controversy and the particular case here are not in dispute and I shall summarize them very briefly.

    The Electrical Workers Union and the stagehands union, they have a big long name but I’ll call them stagehands union.

    The stagehands unions represent various technicians of the Columbia Broadcasting Company.

    For many years, there’s been a dispute between these two unions as to — as to which of them is entitled to perform what is called remote lighting work.

    And remote lighting work, as I understand from the record, involves the install — the installations — the installation and the operation of lighting equipment in connection with a telecast which originates our way from the home studio of the broadcasting company.

    Now, during the period in question here, both unions had collective bargaining contracts with the Columbia Broadcasting Company but either contract, however, covered the assignment of this disputed work.

    And the dispute came to ahead in 1956 in connection with a show which the company was about to televise or telecast, whatever the verb is, from the Waldorf-Astoria Hotel in New York City.

    In advance of the show, the Company informed the Electrical Workers that it was going to assign this remote — remote lighting work.

    It was going to assign it for the stagehands.

    The electricians protested claiming that they were entitled to this work and that they would be — that there would be the nature of control unless they got it.

    Now, the company refused to exceed to this request and the upshot was that the Electrical Workers refused to operate the cameras which was necessary in order to televise the show and as a consequence, the show was canceled.

    Now, the Company then filed charges with the Board alleging that this work stoppage by the electricians was in violation of Section 8 (b) (4) (D), which as I said a moment ago makes an unfair labor practice for a union to strike to force an employer to assign particular work with members of one group or another unless it is governed by — unless the employer’s assignment of the work is in derogation of a preexisting Board order certification within the meaning of Section 8 (b) (4) (D).

    Upon these charges, when these charges were filed, then the Board proceeded to the preliminary hearing that Section 10 (k) requires.

    Section 10 (k), as I said a moment ago, empowers and directs the Board whenever a charge is filed alleging a violation of 8 (b) (4) (D) to hear and determine the dispute.

    William J. Brennan, Jr.:

    May I ask, Mr. Manoli, do you follow the usual procedures in hearings under 10 (k) that is, if there’s a reference to an examiner, the report and —

    Dominick L. Manoli:

    There is a reference to a hearing officer.

    William J. Brennan, Jr.:

    A hearing officer (Voice Overlap) —

    Dominick L. Manoli:

    To a hearing officer but there is no report, Your Honor.

    The matter then goes directly to the Board and the Board then will make a —

    William J. Brennan, Jr.:

    On the record made before the hearing officer?

    Dominick L. Manoli:

    Exactly, exactly.

    Now, in the Section 10 (k) proceedings, after the hearings before a hearing officer and on the record made before him, the Board determined that there was reasonable cause to believe that the work stoppage was in violation of Section 8 (b) (4) (D).

    This was an — not ultimate determination on the facts but a determination, there was probable cause for believing that the work stoppage was within the proscription of 8 (b) (4) (D).

    The Board also found in that case that the employer’s assignment of this disputed remote lighting work was not in derogation of an existing Board order or certification within the meaning of Section 8 (b) (4) (D).

    Felix Frankfurter:

    It has defined it.

    Dominick L. Manoli:

    Sir.

    Felix Frankfurter:

    It has defined it under (Inaudible)

    Dominick L. Manoli:

    That’s our theory, Your Honor.

    And since —

    Felix Frankfurter:

    Is that the dispute?

    Dominick L. Manoli:

    That’s the dispute.

    Since the — since the employer’s assignment, as I say, was not in derogation of a Board order certification meaning of Section 8 (b) (4) (D).

    William J. Brennan, Jr.:

    Excuse me, Mr. Manoli, you — you didn’t quite (Inaudible) did you?

    That’s not the real dispute with it.

    Dominick L. Manoli:

    Oh, perhaps — well, the — I think that we take the view, we take the view that the Board discharges its functions of 10 (k) when it determines whether or not the employer’s assignment of the work is in derogation of a Board order or certification within the meaning of Section 8 (b) (4) (D).

    William J. Brennan, Jr.:

    The court below said you had to go beyond this.

    Now — that’s right.

    And determine who of —

    Dominick L. Manoli:

    Exactly.

    William J. Brennan, Jr.:

    — the competing unions will have work.

    Felix Frankfurter:

    Actually, that’s found under the statute.

    Dominick L. Manoli:

    Sir?

    Felix Frankfurter:

    Actually, that’s found under the statute.

    Dominick L. Manoli:

    Well, that’s the argument — the dispute here, Your Honor.

    We say we are — that the Board need not go beyond making that finding.

    Felix Frankfurter:

    (Inaudible) one or the other.

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    All I’m saying is, that (Inaudible)

    Dominick L. Manoli:

    Yes, sir.

    Felix Frankfurter:

    Alright.

    Dominick L. Manoli:

    That’s right.

    Charles E. Whittaker:

    Well, Mr. Manoli, isn’t it true that the consequence or the necessary effect of what the Board appear — did determine, went beyond what you’ve just said.

    Here, there was a controversy as to whether the employer or the electricians should control this work.

    The Board said, “We find that the electricians do not have this work, then that leave it to the employer and hasn’t you then met the whole statutes of the Court of Appeals.

    Dominick L. Manoli:

    That is our position, Your Honor.

    Charles E. Whittaker:

    Did — you didn’t go that far, did you, Mr. Manoli?

    Dominick L. Manoli:

    Well, perhaps I don’t understand the — for the question but —

    Charles E. Whittaker:

    I thought you were just answering to Mr. Justice Brennan —

    Dominick L. Manoli:

    Yes, sir.

    Charles E. Whittaker:

    — that the Court of Appeals that you would not go so far as the Court of Appeals requires you to go.

    Dominick L. Manoli:

    We, don’t.

    We —

    Charles E. Whittaker:

    But did not you for the purposes of this case, go fully as far necessarily as the Board held you should.

    Dominick L. Manoli:

    The Board in this case, as I said, made the determination of the 10 (k) hearing that the employer’s assignment of this work was not in derogation of a Board order or certification determining the bargaining representative of employers performing such work.

    Second, it had rejected.

    The Board had rejected the offer of proof on the part of the union that was entitled to this work by virtue of a past practice.

    The Board has taken the position, past practice, tradition or what have you is irrelevant to the determination of this kind.

    And therefore, the Board then continue to found that the union was not entitled to this work since this work was not controlled by a Board order or certification within the meaning of 8 (b) (4) (D).

    Charles E. Whittaker:

    Did that determine this dispute to use the language of the statute?

    Dominick L. Manoli:

    That I think is one of our problems whether that is a determination of dispute within the meaning of the statute.

    Charles E. Whittaker:

    (Inaudible)

    Dominick L. Manoli:

    [Laughs]

    Charles E. Whittaker:

    (Inaudible)