National Labor Relations Board v. Truck Drivers Local Union Warehousemen and Helpers of America, A.F.L. – Oral Argument – January 22, 1957

Media for National Labor Relations Board v. Truck Drivers Local Union Warehousemen and Helpers of America, A.F.L.

Audio Transcription for Oral Argument – January 17, 1957 in National Labor Relations Board v. Truck Drivers Local Union Warehousemen and Helpers of America, A.F.L.

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Earl Warren:

Labor Board, Petitioner, versus Truck Drivers Local Union, No.449, et al.

Mr. Manoli, you may continue.

Dominick L. Manoli:

When the Court arose last Thursday, I had reached the threshold of the question which lies at the heart of this case, namely, whether a group of employers, who have been bargaining with a union on a multi-employer basis, may under the National Labor Relations Act lawfully suspend operations when the Union in support of its demands against all of the employers calls a strike against one of them for the purpose of bringing about a perpetually and threatens — and threatens successive strikes against all the other employers for the purpose of bringing about the surrender of the group as a whole.

As I stated last Thursday, the court below viewed the strike by the Union against one of the employer members of the association that is tantamount to a withdrawal by the Union from that relationship.

And therefore that on that basis, there was no distinction to be drawn between a lockout in the hands of an individual employer and a lockout in the hands of employers who are members of an association such as here.

And that in either case, their lockout or suspension of operations is an unfair labor practice within the meaning of the National Labor Relations Act.

As I also indicated last Thursday, we think that neither factually nor as a matter of law can the strike by the Union here against one of the members where it threatens successive strikes against all the other members of the association and where the Union has made no effort to withdraw from the multi-employer bargaining relationship that we think that neither factually here nor as a matter of law can the strike be regarded as equivalent or tantamount to a withdrawal by the Union from the preexisting here, then it is existing for some 13 years from the preexisting bargaining relationship.

Felix Frankfurter:

Did the Board make an examination of the situation in the relationship of the party’s attitude, their pronouncements, et cetera, and concluded the fact that there was not a withdrawal or did it — how did it deal to that problem as a whole?

Dominick L. Manoli:

I think that that is implicit in the — in the Court — in the Board’s opinion, in the Board’s decision.

That the Board said that —

Felix Frankfurter:

If there had been a termination of the multi-party relationship, we’d have a different case in your point of view?

Dominick L. Manoli:

That’s right.

That’s the very question.

Felix Frankfurter:

You regard that as vital, don’t you?

Dominick L. Manoli:

For this case, I do.

Felix Frankfurter:

Yes.

Well, I — how did the Court — how did the Board deal with it?

Dominick L. Manoli:

The Board —

Felix Frankfurter:

Probably to think that there would be appeal implicitly with the vital problem in a case.

Dominick L. Manoli:

The Board did not —

Felix Frankfurter:

I don’t mean to criticize that.

I just want to understand.

Dominick L. Manoli:

The Board treated these cases one where the Union had not withdrawn.

In fact, under —

Felix Frankfurter:

Just took it for granted the —

Dominick L. Manoli:

Under Board law as a matter of fact, Your Honor.

Under Board law, the Union cannot withdraw from an arrangement of this kind.

Now, I don’t think we need to go —

Felix Frankfurter:

Cannot?

Dominick L. Manoli:

It cannot.

Felix Frankfurter:

Why not?

Dominick L. Manoli:

Well, the court below went into that with some light and I think we don’t reach that issue in this case, but I will — I would — I can explain that.

Felix Frankfurter:

What if that —

Dominick L. Manoli:

This —

Felix Frankfurter:

— that is agreed between the party’s resistance.

There was no withdrawal here or is it?

Dominick L. Manoli:

There is no stipulation to that effect, Your Honor.

Felix Frankfurter:

I know.

Was there agreement?

Dominick L. Manoli:

There is no stipulation or agreement —

Felix Frankfurter:

I’m not asking about stipulation.

Dominick L. Manoli:

There is no agreement — there is no agreement on that except the subsidiary basic facts namely, that after the Union struck one of the employers, it continued to bargain with the association as it had been — has it been doing so for the past 13 years.

And that at the end of the week, following the calling of the strike and the suspension of the operations by the employers, that at the end of the week, the union and the association reached an agreement covering all of the employers in the association.

Felix Frankfurter:

And from that, you say as a matter of law, I can draw the inference that the collective bargaining was existing?

Dominick L. Manoli:

That’s right.

And we say that is a matter of fact, it is a matter of law that the Union cannot be held or withdrawn from the preexisting bargaining relationship in those circumstances.

Stanley Reed:

Was it a — a certified union?

Dominick L. Manoli:

No, sir, Your Honor.

The record does not show whether this unit have been certified by the Board but I have made an independent check of it and I find no record of the Board having certified this one.

Stanley Reed:

Certified by anyone of the employers?

Had it been certified at the bargaining agent for anyone of the employers?

Dominick L. Manoli:

I — the record does not show that either, Your Honor.

But again, I made a check of this in the Board’s records and I find no record of — of the Board ever — ever having certified issuing as a bargaining representative of any of the — either of the — of all the employers as a group or the employers individually.

Stanley Reed:

Is there any difference between recognition and certification?

Dominick L. Manoli:

Well, Your Honor, the Board certifies a unit — a union as the bargaining representative of the employees when that union has gained a majority support from the employers within the particular unit.

Stanley Reed:

Only when there is a conflict, only when there’s a struggle over or whether there’s some —

Dominick L. Manoli:

No, not necessarily, Your Honor.

A union which believes to represent some majority of the employers of a particular unit, which in due regard is appropriate may upon a proper showing petition the Board to hold — conduct an election, to determine whether or not the employees want that union as a part of a —

Stanley Reed:

Yes, but they may not be necessary to have an election then —

Dominick L. Manoli:

No, no, no.

Dominick L. Manoli:

If the union — if the union has in fact a majority support among the employees, the employer may — may recognize that union as the exclusive bargaining representatives of his employees without a Board election.

Stanley Reed:

The word recognition refers to what the employer does.

Dominick L. Manoli:

That’s right.

Stanley Reed:

The word certification refers to what the Board does.

Dominick L. Manoli:

That’s right.

Stanley Reed:

Is that right?

Dominick L. Manoli:

Certification gives the union formal status as the exclusive bargaining representative whether there has been an election.

Earl Warren:

Mr. Manoli, is — as a result of their negotiations, did they enter — did the Union enter into one contract with the association or did it enter into individual contracts with the various employers in the association?

Dominick L. Manoli:

Your Honor, the stipulated facts indicate that the practice has been this and I assume that it was followed in the final — when the union and the association upon reached the agreement, although, we have no specific statement as to what exact procedure was.

But the practice has been for the union and the association to negotiate an agreement, then that agreement in turn is submitted to the various employers.

And if the employers — if a majority of the employers in the association approved with the agreement then all of them signed the agreement.

Now, I don’t know, at least I haven’t been able to — I don’t recall that the record shows whether or not they sign — each employer signs separate individual agreements or whether they all annexed their names to one document.

Earl Warren:

Do you — do you attach any significance to whether it was one way or the other, namely, if the Union bargained for the employees and all of the plants and made one contract and the association did likewise is therein as distinguished from making these individual contracts?

Dominick L. Manoli:

No, Your Honor, because I think here the basic relationship is a group relationship and the — you — you have a situation where the — where the Union is bargaining to obtain an agreement from all of the employers and when there were a majority of the employers in a particular — in the — in the association.

We do accept that then it’s binding upon all of them.

They all signed.

Earl Warren:

Yes.

Well, just one more question, Mr. Manoli.

Dominick L. Manoli:

Yes, sir.

Earl Warren:

I — I thought I understood you just say that the Union could not withdraw from its agreement.

Can the members of the employer association withdraw?

Dominick L. Manoli:

Under Board law, yes, Your Honor.

And if I may explain that —

Earl Warren:

I wish you would.

Dominick L. Manoli:

Well, I do not think that we reached this issue in this case because as I have said we start with the premise, which I think is born out by the record.

There has not been withdrawal here by the Union from this multi-employer relationship but I will explain it.

Earl Warren:

Yes.

Dominick L. Manoli:

Under the statute, the Board — the Board may find that an employer or plant or subdivision of a plant is an appropriate unit for purposes of collective bargaining.

Now, the Board, by combining the term employer in Section 9 of the statute which deals with the certification of the bargaining units, combining that with the definition of employer in Section 2 — in Section 2 of the statute and Section 2 of the statute, the old Wagner Act said that employer included those who acted in the interest of the employer directly or indirectly.

The Taft-Hartley statute defines the term employer as including those who are acting as agents for the employer directly or indirectly.

Dominick L. Manoli:

Now, taking Section 9, which deals with the certification of units of — of bargaining units, taking the term employer there plus the definition of employer in Section 2, the Board has concluded that a — an employer association that is a unit covering a number of employers is an appropriate unit for bargaining representatives but it is crucial that — that the employers had given consent to that kind of an arrangement since the association under the statute in order to come within the definition of the term employer must be the agent of the employers either directly or indirectly.

So now, the employers must enter in this arrangement voluntarily because their consent is essential under — under the statute.

Once they withdraw their consent, then the basis — the basis of that kind of unit is gone, and therefore, the employers as I say have to enter in this arrangement voluntarily and they may withdraw at any time because their consent is essential under the statute to this kind of arrangement.

On the other hand, the Union’s consent to this arrangement, let me put it this way, that the Board will not certify a multi-employer unit unless there has been a history of this — of this type of bargaining between the employer association and the union.

And whether there has been such a history, then the Board will not — once it has certified such a unit, it will not permit the Union — the Union to withdraw.

And the reason for that is that the unit remains — remains appropriate even though the Union wants to withdraw from that — from that arrangement.

Felix Frankfurter:

You mean withdraw during the life of the arrangement?

Dominick L. Manoli:

During the life of the arrangement, that’s right, or during the life of a contract —

Felix Frankfurter:

Yes.

Dominick L. Manoli:

— which has been executed —

Felix Frankfurter:

Yes, I’m assuming of contract.

Dominick L. Manoli:

— which has been executed.

There are also cases where — where the Union has sought to — after at an appropriate time, has sought to get the Board to certify a different unit, an employer unit, an individual employer unit.

The Board will not permit — will not certify the individual employer unit because the Union want to withdraw from the multi-employer arrangements.

That’s — that as I say is Board law.

We’ve never had that proposition tested in the courts.

But again I say, I don’t think we reach the — the validity of the Board’s ruling with the respect to withdrawal or non-withdrawal of the Unions from these multi-employer arrangements.

Felix Frankfurter:

Mr. Manoli, you have said several times —

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

— that certain questions from the bench we needn’t reach in this case?

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

Would you mind stating what you concede to be the circumscribed issue or issues in this case?

Dominick L. Manoli:

Yes.

Well, I think the issue here is whether the employers who are bargaining with the Union, representing all of their employees are bonding with them on a multi-employer basis.

Felix Frankfurter:

Under a contract which — with — how long?

Dominick L. Manoli:

No, the contract did come to an end here virtually.

Felix Frankfurter:

What?

Dominick L. Manoli:

Their contract was expiring here.

The contract in this case was expiring, Your Honor.

They were negotiating the employers to their association.

Dominick L. Manoli:

We’re negotiating with the Union for the purpose of getting a contract to succeed, the existing contract, which was about to expire.

Felix Frankfurter:

Well what — all right, finish your —

Dominick L. Manoli:

Now, if I may continually with the — what I think is the question in this case is whether the employers who are member of that association and who are bargaining with the Union on a multi-employer basis.

Felix Frankfurter:

As a matter of history?

Dominick L. Manoli:

As a matter of history and actually in this case, may lawfully suspend operations when the Union in order to obtain acceptance of its demands by the entire group of employers may lawfully suspend operations where the Union caused a strike against one of them and threats — threatens successive strikes against all of the other employers in order to obtain group surrender to its demands.

Felix Frankfurter:

And by the history, I’m entitled to infer, am I that there’s no antiunion aspect in the relationship between employer and employee?

Dominick L. Manoli:

No, sir, Your Honor.

There is no antiunion —

Felix Frankfurter:

Well, if this is action is not interpretable as an antiunion manifestation or a refusal to enter the collective arrangement?

Dominick L. Manoli:

No, sir.

Your Honor —

Felix Frankfurter:

That’s essential, isn’t it?

Dominick L. Manoli:

The Court — I think not.

Felix Frankfurter:

Not.

But what is exactly in this case?

Dominick L. Manoli:

The Court — the Board here expressly found that the employer’s action was not motivated by the usual anti or union busting considerations but rather the employers here were motivated by desire to protect their bargaining relationship, which under the Board’s — in the Board’s view they were entitled to protect their solidarity as against this divisive, whipsawing strikes which were calculated to bring about a surrender of the group as a whole.

Felix Frankfurter:

But why do you say that it isn’t an essential part of this case?

Dominick L. Manoli:

The motive —

Felix Frankfurter:

Namely, that the — that the Board found that this is a defensive tactic or strategy, call it what you will by —

Dominick L. Manoli:

Yes.

Felix Frankfurter:

— the employer, isn’t that essential in this case?

Dominick L. Manoli:

Well, I say that the Board did find that.

Felix Frankfurter:

Yes.

Dominick L. Manoli:

The Board found no antiunion motivation in the — in the action of the employers.

Felix Frankfurter:

Well, I — I — and my question was, isn’t it essential that that be present, that negative situations here.

Dominick L. Manoli:

No, sir.

Felix Frankfurter:

In other words, that there’d be no antiunion.

Dominick L. Manoli:

If there were antiunion motivation, if I may put it perhaps in my own words, if there were antiunion motivation, then this kind of a lockout would be clearly a violation of the statute.

Felix Frankfurter:

Well that — hold on, all right, (Voice Overlap) —

Dominick L. Manoli:

If we’re union busting technique, let us say, or in purpose to — to defeat the employer’s exercise of their rights —

Felix Frankfurter:

Well, then the finding here is of a collect — of multiple parties on one side is against the Union with an honest — an honest purpose to renew — renew terms — to maintain or to enter into negotiations for the renewal of terms and with an honest desire to appeal such successful outcome in the negotiation, is that it?

Dominick L. Manoli:

And that’s — if I may add and to keep the contest between them, not only the agreements, but the contest between them at the group level.

Felix Frankfurter:

Everyone of the statute is essential to your case, isn’t it?

Dominick L. Manoli:

Yes.

Could you explain why the individual whipsawing technique, as you call it, is an unfair labor practice is against the strike, against all of the members?

What — what’s so effective about that?

Dominick L. Manoli:

No, Your Honor, we don’t say that the whipsawing strike technique against the employers is an unfair labor practice.

Our position is that the employers may — the employers bargaining upon the basis that they do on this case may lawfully defend upon that kind of a strike.

I didn’t mean to characterize this an unfair labor practice, but what — why is — why — why is the — why can the individual members, the non-struck employers in the collective bargaining arrangement of this kind, associating arrangement, why can they strike, why can they lockout —

Dominick L. Manoli:

Yes, sir.

— when there is an individual strike, whereas I take it it’s implicit in your argument that the Union struck all of them, they couldn’t lockout.

Dominick L. Manoli:

If the Union struck all of them, of course Your Honor, there would be no occasion for a lockout because a strike had taken place and that would — that would normally cause a cessation or suspension of operation.

Well, they try to strike against those?

Dominick L. Manoli:

Yes.

Now, let me, I believe there were no —

Earl Warren:

Mr. Manoli, before we get on to that question, I — I understood you to say that the employer could withdraw at any time.

Did you mean just that?

Dominick L. Manoli:

At any time unless there is an existing contract —

Earl Warren:

Yes, yes.

Dominick L. Manoli:

— between the parties.

Earl Warren:

Yes, yes.

Well, I just want —

Dominick L. Manoli:

Once the contract terminates — once the contract —

Earl Warren:

Yes.

Dominick L. Manoli:

— terminates under Board law and the Board feels that this is — that this result is — is dictated by the statute, the employer may withdraw, that is of course.

Earl Warren:

But not of course during a lifetime of the contract?

Dominick L. Manoli:

No, sir.

No, sir —

William J. Brennan, Jr.:

Well, Mr. Manoli, I — I don’t follow — I — I gather there was no unit determination in this case.

Dominick L. Manoli:

There was none by the Board.

William J. Brennan, Jr.:

And obviously, it wouldn’t be because I think you told us there’s no formal board certification as regards to any employer here.

Dominick L. Manoli:

That’s right.

There’s no formal —

William J. Brennan, Jr.:

Well, then how — how does this business of Board law about withdrawal either of union or employer from the arrangement concern us here?

Dominick L. Manoli:

It does not, Your Honor.

That’s the point that I’m — I’m suggesting in answer to the Chief Justice’s questions that — well, that’s a very interesting facet of Board law.

I don’t believe whether we reached the question here or there’s an essential appeal with the question or whether or not the employers may withdraw from this kind of a relationship or whether the Union may withdraw from — from this relationship.

William J. Brennan, Jr.:

Well, may I — may I declare in my own mind that this Board law that you described for us is applicable only in a circumstance in which there has been a formal unit determination by the Board in a certification proceeding?

Dominick L. Manoli:

That’s usually the posture in which the matter has come up before the Board.

William J. Brennan, Jr.:

Well, you say usually but —

Dominick L. Manoli:

I’m trying to recall, Your Honor, whether there had been a situation where there has been multi-employer bargaining but without a board certification.

And then there has been — there has been a petition filed by union to break away from that and my recollection serves me right.

I believe that the Board has had that situation and it will not permit the Union to withdraw from that arrangement —

William J. Brennan, Jr.:

Well, am I —

Dominick L. Manoli:

— isn’t a preexisting history.

William J. Brennan, Jr.:

Am I wrong in my impression that the Board is never required to make any — to recognize or accept a unit determination made by the parties —

Dominick L. Manoli:

Not —

William J. Brennan, Jr.:

–necessarily?

Dominick L. Manoli:

Not unless it’s otherwise appropriate.

William J. Brennan, Jr.:

That’s what I mean.

Dominick L. Manoli:

It must be otherwise appropriate.

The mere agreement of the parties will not determine the appropriateness of the unit.

William J. Brennan, Jr.:

Well, that — that being the fact, then wouldn’t it follow that the whole issue of Board law would be pertinent only in a case where there had been a determination of appropriate unit?

Dominick L. Manoli:

That would — I think that it might be that you might have a situation where the parties had been bargaining on the basis of a certain unit, which the Board subsequently finds to — to have been appropriate.

But the Union may — may file a petition seeking to withdraw from a unit which the parties themselves have regarded as appropriate and which the Board subsequently finds to be appropriate.

In that situation, the Board will not permit the Union to withdraw.

William J. Brennan, Jr.:

Well, what bothers me is — I gather from what you just said that it would be possible even though there had not been a determination formally of an appropriate unit for the Board to apply this law that you described for us?

Dominick L. Manoli:

I — but my recollection is that the Board has done that, yes.

Felix Frankfurter:

Is there anything — is there anything to the statute that precludes a union from having had a practice over the years of dealing with number of employers as a union?

What is there in the statute that requires determination of the appropriateness of the Union by the Board or by — after the Government?

Dominick L. Manoli:

That isn’t necessary.

The parties may deal —

Felix Frankfurter:

The parties may be —

Dominick L. Manoli:

The parties may deal —

Felix Frankfurter:

The parties may be.

If there’s anything in the law that precludes peaceful relationship between an international or (Inaudible) and the body of employers dealt with as a group.

Is there anything in the law?

Dominick L. Manoli:

No, the parties may deal — the parties may deal with voluntarily on the basis of any that they deemed appropriate.

But once they seek to obtain Board certification, of course, on this —

Felix Frankfurter:

Well, I understand that.

Dominick L. Manoli:

— the unit must be appropriate —

Felix Frankfurter:

Certainly.

Dominick L. Manoli:

— on the Board —

Felix Frankfurter:

If the Board is in law, doesn’t it, must apply its standards?

Dominick L. Manoli:

That’s right.

Felix Frankfurter:

What I wonder is whether the parties can’t go on without having any intervention of Government (Inaudible)

Dominick L. Manoli:

That’s correct, sir.

Stanley Reed:

What — what if — if you had had no organization but what would be the linen supply of people?

And — and yet, they had been 12 individual contracts with linen supply people and then in negotiation, one of them was struck.

Could the other individual employer supply employer lockout its employees without violating the labor law?

Dominick L. Manoli:

Your Honor, the Board will find a multi-employer unit as appropriate only where — only —

Stanley Reed:

Oh, but if it’s found — suppose it has found — it’s never been presented to it.

Just as it — as I understand, it’s never been presented here —

Dominick L. Manoli:

I — I think it —

Stanley Reed:

— the informality of —

Dominick L. Manoli:

Yes.

Stanley Reed:

— the arrangement that — that was made to tell when — when one has violated an agreement that they never made.

Dominick L. Manoli:

Well, you have — where you have that informal arrangement, the Board will not recognize it as — as an appropriate multi-employer bargaining relationship.

Here, you do have this formal arrangement and that’s why we think that there are special considerations applying to this type of case which entitled the employer to protect their unity or their solidarity or the integrity of their bargaining — or their form of bargaining relationship.

Stanley Reed:

Well, I must have misunderstood because I thought you said there was no formal arrangement that you didn’t know whether the individuals signed it or whether the group signed it.

Dominick L. Manoli:

There was a formal arrangement in this sense, Your Honor, that under the stipulated facts here, the employers had authorized — had authorized the association for some 13 years to bargain upon their — on their behalf with issuing.

And then, the other association acting on — in behalf of the employers would negotiate an agreement with the Union.

And once they had arrived in agreement thereafter, that particular agreement would be submitted to the various employer or members of the association.

And if a majority of them approved the agreement, then it was binding upon all of them.

They —

Felix Frankfurter:

But one of the — one of the most controversial aspects of industrial relation is whether there should be collectivized action by employers, whether they should act collectively or on their own individually.

Is that true?

Dominick L. Manoli:

That’s a very important question, yes, sir.

Felix Frankfurter:

Well, it makes a lot of difference in the world, whether 13 employers make 13 individual arrangements for the Union or whether they want to act to — as a body of a collectivity.

Dominick L. Manoli:

And here —

Felix Frankfurter:

Is that true?

Dominick L. Manoli:

Yes.

Felix Frankfurter:

But there’s been found these differences in the industrial world.

Dominick L. Manoli:

That is what we think is the very significant premise of this cases that here the employers are acting through an association.

They are dealing with the Union at a group level and we think that this relationship — this multi-employer bargaining relationship necessarily by its very nature, necessarily presupposes that on — not only agreements between the parties be at the group level but also that economic contest between the two groups be at that level.

Felix Frankfurter:

Well, it stands stay in form from labors point of view that they do not have competitive employers that may undercut the terms that they had with one employer rather than another.

Dominick L. Manoli:

Now, if I may explain now what Mr. Chief — Justice Frankfurter has put into — into a few words.

Because I see the first consideration which we seek to place before this Court is that this multi-employer relationship presupposes that not only the collective bargaining agreements be at the group level but also that the contest be at the group level.

As we have indicated in our brief, this type of bargaining is — had been an accepted pattern in our industrial life, it’s been accepted by many industries and as the authorities which we have collected in our brief indicate this type of bargaining offers, important advantages, not only to employers but to unions as well.

From the Union’s standpoint, this type of bargaining permits them to achieve, as the authorities say, permits them to achieve a standardization of employment conditions which is an important labor objective.

And it also gives the Union a — a greater degree of protection against being dislodged by a rival union, then would be the case if the contest between the Union and the rival union were on a single employer basis.

Now, on the other hand, this relationship also offers important advantages to the employers.

Perhaps, the most significant factor that predisposes employers to enter into this multi-bargaining relationships is that it is thought that this form of bargaining offers the most practical way from making the collective-bargaining process work in a real and meaningful sense as far as the employers are concerned.

This type of bargaining is found for the most part, most prevalent among employers, small and competing employers were found in metropolitan areas.

It’s been estimated and some 70% of these multi-bargaining units are to be found among such employers.

And normally, these employers acting individually possess no substantial measure of bargaining strength as against the Union which represents all of the — all of the employees.

And unless these employers are able to band together and present a united front to the Union, they have little or no room for any effective collective bargaining as against the Union.

And from a very practical standpoint, their basic choice is either to enter into these multi-employer bargaining relationships where they can present a united front to the Union or simply they have no bargaining at all in any real or meaningful sense.

As one student of this subject who has had a very close and firsthand experience in these matters has said — had said that in the absence of multi-employer bargaining, such as we have here, the unorganized employer has no bargaining strength or whatever when he acts alone.

The Union submits its demands.

Dominick L. Manoli:

If the lone employer does not exceed, he is closed by a strike, the Union diverts his employers to other jobs.If this cannot be accomplished, a small strike assessment on those continued work and finance strikers indefinitely.

The employer’s competitors get his business, striking employers are at work elsewhere, the employer is soon the forgotten man.

He has two choices to submit to the demands or to go out of business.

Now, by entering into these multi-employer arrangements, the employers seek to redress this very obvious imbalance.

They seek to pull their strength and one of their principal objectives is to meet concerted action of the employees with concerted action by the employers.

And by creating as — in alignment of strength on both sides, they hope to gain a more effective voice in — in the determination of their labor contracts and it would be the case if they were acting on an individual basis.

They also hope to obtain a greater degree of stability and industrial peace.

But beyond these considerations, perhaps the most important consideration which makes for this type of bargaining insofar as the employer is concerned is a desire and a purpose to be free from being singled out by strikes, by the Unions while their competitors continue to remain in operation.

I still don’t understand why a — it’s all right for a non-struck employer to gain a lockout against the threat of the strike and I take it’s implicit in your argument that there had been no multi-employer unit here.

There would be lockout and not have been about a lockout, not a proper lockout.

Dominick L. Manoli:

Your Honor, I believe our — I will take issue with your basic premise that the — a single non-struck employer may engage in a lockout.

Now, the Board has held —

That’s the question I put to you last Thursday and you said you didn’t want to express your view for the Board.

Dominick L. Manoli:

Well, the Board has held that a single employer who locks out in employees in anticipation of a strike merely to avoid economic hardship, ordinary economy hardship that a strike may entail that that is an unfair labor practice.

The Board —

Felix Frankfurter:

That is — is an unfair —

Dominick L. Manoli:

Is an unfair labor practice.

That’s right.

Felix Frankfurter:

Now, do we use about that?

I don’t see how that can be.

All right, go on.

Dominick L. Manoli:

The Board, however, has expressly reserved a decision on the question whether a single employer who engages in what we call a bargaining lockout, in other words, a lockout to checkmate the Union’s right — the Union’s strike authority, the Board has reserved decision on that question and it is on that question which I respectfully decline to indicate my own personal —

All right, now assuming for the moment —

Dominick L. Manoli:

Yes, sir.

— that that unanswered question would be answered against the right to lockout.

Dominick L. Manoli:

Yes.

You say you don’t have to reach that question because here you’ve got a multi-employer unit.

Dominick L. Manoli:

That’s right.

And my question is what is it that makes the lockout all right when the threat is against the multi-employer unit as represented by a —

Dominick L. Manoli:

Yes.

— strike against one whereas it would be all right, my hypothesis, against the single individual?

Dominick L. Manoli:

Because we think there are two considerations in the case of a multi-employer unit which — on which we base our case.

One is that, as I have said before, that the multi-employer bargaining relationship necessarily by its very nature presupposes that the contest between the Union and the employers as well as their agreements be at the group level.

Now, we — we think that that’s implicit in the arrangement with — in that — that.Well, I don’t mean to suggest that these reasons necessarily mean that the bargaining lockout by an individual employer is either lawful or unlawful.

I do mean to suggest that this case has different considerations which make it unnecessary for this Court to reach the question of the legality of the lockout in the —

Well, I’m —

Dominick L. Manoli:

— hands of an individual employer.

I’m asking you what those are because the Union here did continue to bargain with the multi-employer unit.

Dominick L. Manoli:

Well, of course, the Board originally has — did hold in the Morand case which is in 1952, in that case, it held that the — the lockout in the hands of a multi-employer group was unlawful, and of course, a fortiori and also that a fortiori on that basis that a lockout in the hands of a single employer would also be unlawful.

Now, the basis of the Board’s decision there was and I suppose that this would be the argument as against the single employer using a lockout, the basis is that that the lockout penalizes the employees for threatening to strike and that it deters them from exercising — from exercising their right to strike under the statute.

Now, it may be, however, that there may be other considerations in the case of the single employer which may justify, may make it legal for the single employer to lockout his employees as a bargaining technique.

But as I say the Board has reserved that question and it hasn’t passed upon it yet.

And I do not know where the Board will come out when their question is presented to it.

Felix Frankfurter:

You said to Mr. Justice Harlan’s questions, there were two different issues.

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

You gave only one, namely.

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

What’s the —

Dominick L. Manoli:

The second — the second differentiation is we think that the statute has recognized this multi-employer bargaining relationship and that with this — that this recognition carries a further recognition of the employer’s legitimate interest in protecting their solidarity as against these selective divisive whipsawing strikes.

Felix Frankfurter:

What in the statute recognized that?

Dominick L. Manoli:

The fact that the Board has been authorized to certify these multi-employer units.

We think that that authority in effect recognizes the appropriateness of these units and their underlying structure.

And we say that from we may — we may — from that, it is perfectly proper to say that Congress has meant to preserve the employer’s legitimate interest in protecting their solidarity which after all is the principal reason why the employers entered into this kind of an arrangement to begin with.

Now —

Well, supposing the — supposing the Union here and instead of striking as one employer had served notice on all of them.

We’re going to strike next Tuesday.

Dominick L. Manoli:

Yes, sir.

Would the lockout have been all right by all of them, just — without — any further showing, would the lockout have been all right?

Dominick L. Manoli:

Then — I think on that where the Union — I think that on that basis we come — we come to discuss — actually, what we’re getting at is to whether or not the lockout in the hands of the single employer —

I think you can’t duck that question and that’s basic to the whole proposition, unless you can show me some reason why there’s some magic in the threat going to a group rather to an individual.

Felix Frankfurter:

But they didn’t tell the 12 employers they’re going to strike.

I don’t see why an important fact if the Union chooses not to strike or threaten to strike 12 did the same thing as when they do threaten the 12.

I don’t understand that.

Didn’t the — didn’t the Court of Appeals find, didn’t Judge Frank say, it wasn’t the premise of his decision that the strike against this one employer was the equivalent of a threat to all the others?

Dominick L. Manoli:

That’s right.

And that — wasn’t that premise?

What are you arguing?

Dominick L. Manoli:

They agreed.

They agreed with the Board.

They agreed with the Board that the strike against the one employer carried with it the threat of successive threats against the others (Voice Overlap).

All right.

Now, my question is what — why — why it is that you make the threat whether it’s direct or by implications through a strike of this kind against an individual?

That kind of a lockout is all right.

Dominick L. Manoli:

Because the lockout in the one case is directed against the whole group and whether it’s directed against the whole group, there is no purpose of trying to preserve — preserve the integrity of the relationship, whereas here — whereas here, the purpose of the strike is to — is to compel one employer after another to submit to the Union’s demands.

And necessarily — necessarily as the Board says, atomizes — atomizes the — the solidarity of the employer or the employer group.

It tends to destroy the integrity of their bargaining relationship as against the Union.

You mean a sort of an unfair labor practice?

Dominick L. Manoli:

I’m not saying it’s an unfair labor practice, Your Honor.

What I am saying is that the employer’s interest in preserving this integrity is one which is entitled to recognition as against the employer’s right to strike.

And that in balancing the — in balancing this — this subject matter here as the Board may properly say that the employer’s interest in preserving their integrity is such that it may call for some limitation upon the Union’s right to strike.

And as a matter of fact, they might say that the limitation which is put upon the Union’s right to strike is merely the one which we think that this bargaining relationship necessarily presupposes.

In other words, that this strike — the Union is still — the Union is still free to strike but at the level at which the bargaining relationship necessarily presupposes.

Felix Frankfurter:

Mr. Manoli, do I infer that you — that in my view, assume that they threat to strike, meaning of fear by the associated employers that if they win against him, they admit (Voice Overlap).

Dominick L. Manoli:

They’re (Voice Overlap), that’s right.

Felix Frankfurter:

Do I infer from that statement that the same thing as giving a strike notice to 12 employers?T

he word threat, it means to me, be thrown around there very loosely.

Dominick L. Manoli:

Well, I think —

Felix Frankfurter:

It doesn’t operate that way in the actual industrial situation.

The mere fact that he fears that he will strike isn’t the same thing in giving notice that they will strike.

Dominick L. Manoli:

But —

Felix Frankfurter:

And their collecting together, they’re associated in this enterprise resides in order to be treated as a unit, isn’t that the purpose of it?

Dominick L. Manoli:

That’s correct.

That’s the purpose of it.

And we think that the employers may —

Felix Frankfurter:

That’s a very different thing for giving individual people individual notice when they’re not associated together.

Dominick L. Manoli:

Quite right.

And that’s why we said that you can distinguish this case from the single employer that the Court does not need to reach the legality or illegality of the lockout in the hands of the single employer.

Hugo L. Black:

May I ask you a question in that connection, I’m going to infer for myself?

Is there anything in the statute, any provision in the statute, any words in the statute which you could point which indicate that a collective group of employers acting as a unit, as you say, makes the contrary have anymore or less right to exercise that economic power than a single employer?

Dominick L. Manoli:

Of course, I cannot point any such thing, Your Honor, in the statute itself.

But I do say this that the statute has empowered the Board to certify these multi-employer bargaining units.

Hugo L. Black:

I get that.

Dominick L. Manoli:

And we further say that that authority, that Congress in permitting the Board to do that has recognized as legitimate, something to be taken into account by the Board.

The employer’s interest in preserving the integrity of that unit which the Board may certify under the statute.

Hugo L. Black:

But the purpose of that is that in that sector unit taking integrity, using language I can understand a little better from my standpoint.

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

I understand you’re saying that when they make this kind of an agreement, collective agreement, they have a right to use the economic power of the unit —

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

— insofar as they do not violate some terms of the unfair labor — of the Board, some — some provisions of the Board.

Dominick L. Manoli:

Yes.

Now, that being true, if they lockout or shutdown, it’s a shutdown, they just — they want to — they want to retain the right to shutdown their plant like the employers retained the right to strike.

They insist they have a right to obtain the right power to shutdown their plant in order to increase their bargaining advantage.

That’s what it is, isn’t it?

It’s not — of course, it necessarily increases their bargaining advantage but I would put it in these terms that their purpose is to preserve — is to preserve the bargaining relationship, their — the integrity of their bargaining relationship as against the Union.

Hugo L. Black:

But why?

Or, the purpose is isn’t it not, as I gather, they insist they have a right, 1 or 10, which ever is a legal unit —

Dominick L. Manoli:

Yes, sir.

Hugo L. Black:

— to shutdown their plant if they want to when they are bargaining with unions and say now, we are going to shutdown our plant, you take that into consideration in what terms we do it.

That being the case, I’m unable to see, unless you have something in the statute which distinguishes between the right to shutdown.

When you have a one employer and have groups that you have something in the statute, I feel like Justice Harlan is, see where you can draw much distinction.

Dominick L. Manoli:

Well, I have to repeat I think pretty largely.

Hugo L. Black:

Well, I heard what you said to him —

Dominick L. Manoli:

What I am saying that I —

Hugo L. Black:

— from my standpoint.

Dominick L. Manoli:

I cannot point — I cannot point any statutory phrase (Voice Overlap) —

Hugo L. Black:

Is there anything in there that says that they can or cannot shutdown their plant whenever they desire or is there any language in the Act which indicates they can shutdown their plant in connection with their bargaining in order to make the other side to have a better turn?

Dominick L. Manoli:

There are certain provisions in the statute and the Board has not relied upon these provisions now —

Hugo L. Black:

But whether the Board does or not, are there any provisions —

Dominick L. Manoli:

There are —

Hugo L. Black:

— that the other side could or would rely on which indicates that in this bargaining process, it’s recognized that an old technique used by employers before there was a Board to wit, we’ll shutdown our plant if you don’t agree with us.

Is there anything it indicates that any of that power was left or is there anything that indicates that power was taken away from them?

Dominick L. Manoli:

Only as you may interprets that the sections like Section 8 (d).

Section 8 (d) for example, prohibits the employers from engaging in lockouts during the cooling off period prescribed by that statute.

Hugo L. Black:

Why does it do that?

Dominick L. Manoli:

So that the boat won’t be rocked in my opinion.

Hugo L. Black:

But why?

Didn’t it say that to forbid lockouts if lockouts are forbidden?

I mean why is it necessary to forbid them under certain circumstances and therefore —

Dominick L. Manoli:

Well, the argument has been made, Your Honor, that by — that the inference to be drawn from that is that the lockout is permissible in other situations.

Now, the Board — the Board has not — has not dealt with any —

Hugo L. Black:

Have you taken any position on that?

Dominick L. Manoli:

Originally, it took position on the Morand case.

When the argument was urged to the Board that the lockout of this character was lawful and those who sought to support the legality of the lockout — I’ve been going with my time — those who sought to support the legality of the lockout in the hands of the employers where they’re single or multiple, pointed to Section 8 (d) and also other sections of the statute which link of the Labor Management Relations Act, which link lockout with strike and forbid it under certain circumstances, they made the argument that the inference to be drawn from that was that Congress would not have prohibited the — the lockout in this particular situation unless it was otherwise lawful.

The Board rejected that argument in that case and said that all we can tell from Section — Section 8 (d) is that in the particular period, the cooling off period, Congress meant to prohibit lockouts, whether Congress meant to prohibit lockouts or what it thought of lockouts as to their legality or illegality in any other situation, we do not — we cannot infer that from Section 8 (d).

Now, in this case, the Board has placed no reliance or whatsoever upon Section 8 (d) where significance or inference may be drawn from the prohibition of the lockout in that particular situation.

The Board’s case here rest upon the — the nature of the multi-employer bargaining relationship —

Hugo L. Black:

Do you mean the Board’s case or its argument?

Dominick L. Manoli:

Pardon?

Hugo L. Black:

Do you mean the Board’s case or its argument rest on that?

Dominick L. Manoli:

The — the Board’s case and its subsidiary argument, yes.

Dominick L. Manoli:

Our argument here rest, rest upon two propositions that this case has — that at the multi-employer bargaining relationship has significant difference.

There are significant differences between the multi-employer bargaining relationship and the single employer, so the Court does not have to reach a single employer situations and that these significant differences are one, that the multi-employer bargaining relationship which the statute authorizes as appropriate by its very nature, necessarily presupposes the very premise of it is that both contest and agreements be at the unit-wide level.

Hugo L. Black:

Well, now that being true stopping there, why — if that be the case, would it give them any more or any less power than they would have if they were a single unit?

Dominick L. Manoli:

Because there is a legitimate interest here, Your Honor, and the preservation of that — of that relationship which we say the statute has — not in so many words, but the statute has implicitly recognized.

And since the statute implicitly recognized it, we think that is one that is entitled to protection under the statute as against the Union’s whipsawing selective strikes which is designed — which are designed —

Hugo L. Black:

I don’t — I don’t understand all this whipsaw business.

It seems to me like you have a problem here where the statute forbids lockouts as a — and you — to use lockouts as a means of improving your bargaining advantage with the adversary, adversary here being the union.

And I cannot see why — maybe — maybe I just can’t get it.

I cannot see why, if the statute permits lockouts, thus, when a single employer earned his bargaining with his labor union —

Dominick L. Manoli:

Prohibits.

Hugo L. Black:

— or prohibits it either, it does one or the other.

I can’t see why unless you can point to something in the statute which indicates the mere fact that instead of having one due to bargaining, you have three would change the problems.

Dominick L. Manoli:

Because we think that there has been injected into this situation, something which is not to be found in the case of this single employer, namely, the integrity of this bargaining relationship which we say the Union has implicitly recognized.

And the Union must take the bitter with the sweet there again, certain advantages from this relationship —

Well, could I put this question to you?

In essence, your position is once you got a multi-employer unit that presupposes that there’s going to be good faith bargaining with the unit as distinguished from individual members of it, right?

Dominick L. Manoli:

Yes, sir.

That being so, then if the — the Union strikes against one, why isn’t that a refusal to bargain in good faith with the multi-employer unit and as such is an unfair labor practice?

Dominick L. Manoli:

That I think is an argument that’s been advanced by the party.

Well, you kind of ducked that one every time when I’m trying to get a hold of something that I can (Voice Overlap) —

Felix Frankfurter:

But that isn’t important in this case.

Dominick L. Manoli:

I’m trying to duck it because I think that it doesn’t square with the facts of this case.

And also because I have no enlightenment from the Board as to what its position would be on that.

Felix Frankfurter:

It doesn’t follow that something that isn’t — everything that isn’t an unfair labor practice is practice that — that conduct prohibited to the employer anymore than the other way around, does it?

Dominick L. Manoli:

That’s right.

Felix Frankfurter:

In other words, the National Labor Relations Act doesn’t exhaust all the implications of the industrial situation —

Dominick L. Manoli:

Certainly, not.

Felix Frankfurter:

— and that you must find within the cover of that statute, everything isn’t implicitly prohibited, everything isn’t implicitly permitted.

Is that a fair statement?

Dominick L. Manoli:

It’s a fair statement.

Earl Warren:

Mr. McMahon.

Mr. Attorney General:

Your Honor —

Earl Warren:

I think your time is up.

Mr. Attorney General:

No, sir.

I don’t think so.

Dominick L. Manoli:

Your Honor, we had consented in having 10 minutes of our time —

Earl Warren:

Well, but your hour is up.

Dominick L. Manoli:

I’m afraid I have —

Earl Warren:

Most considerably up.

I am afraid we’ve got no —

Mr. Attorney General:

No, is that — is that correct, sir?

Time is entirely up?

Earl Warren:

Oh, yes.

Mr. Attorney General:

I did not know that, sir.

Earl Warren:

Mr. McMahon.

Thomas P. McMahon:

Mr. Chief Justice, may it please the Court.

The question asked by Mr. Justice Frankfurter, it seemed to me to underscore the problem as the Board’s position before this Court because while there is a considerable doubt, both reflected in the legislative history and by all of the writers in the field whether or not multi-employer bargaining is good at all.

This — the Board is now asking this Court to make a legislative judgment that it is — that multi-employer bargaining is not only good but it is so good that we’re going to give them special privileges not accorded to the individual employer to encourage and foster this type of bargaining.

Now, I believe it’s worthy of restating some of the basic facts because while the facts are briefed I think in this case, as in every case, they are crucial.

There is an unincorporated association composed of eight or nine employers who are in the laundry and dry cleaning business.

And their field of operations extends from Niagara Falls and Niagara County on the north through Buffalo and Erie County down to Dunkirk and Cattaraugus County, along the western pier of the State of New York.

And contrary to the opinion in the dissenting opinion below, this does not constitute the metropolitan area of the City of Buffalo.

I don’t know if the matter is crucial to this Court, but I think if it is, it’s an often notorious and undisputed fact that it is not part of the metropolitan area of Buffalo.

Furthermore, the exchange bargains with Local 449 who represents the truck driver employees also bargains with other unions.

So if it is at all crucial when we talk about 25 employees of each employer, we are only talking about 25 truck driver employees and we’re not talking about those other employees who were engaged in the actual laundry and dry cleaning business.

Now, in April of 1952, a collective bargaining agreement was entered into between Local 449 and the Exchange.

And the terms of the agreement affixed a one-year term with the 60-day notice substantially in the words of the statute.

The expiration date was April 30 of 1953.

The Union served its notice some time in February.

The employer served no notice.

Thomas P. McMahon:

So that some time in March, the Union began bargaining with the Exchange and the bargaining continued all the way through April, all the way through March, all the way through April until finally on the 26th day of May, there was a strike of the truck driver employees at Frontier Linen, one of the members of the Exchange.

And at that night, the Exchange and the individual employers who were its components said, “We’re laying off.

We, the non-struck employers, are laying off our employees.”

“Why are you laying them off?”

“We’re laying them off because of the strike at Frontier.”

“When would you let them go back to work?”

“We’ll let them go back to work when you stop that strike at Frontier and you withdraw the picket line at Frontier.”

The employers never claimed that any economic or operative problems existed at their plant.

They never asked the Union or anybody else or their own employees, do you intend to strike us.

They didn’t care.

Because if you’ll read the record when the trial examiner asked the attorney for the Exchange, “Do you have something to say about this?”

He said, “We — we admit that we did what we did.

The only thing we say is that because we’re a multi-employer unit, we have a right as a matter of law to do it.”

And perhaps that gets us to the heart of the matter.

Well then, during the ensuing week, the — the Union and the individual employers asked this corporation, these various corporations, to let us go back to work in the same terms and conditions.

And again, they were refused and again, the reason was given, “Not until you stop that strike at Frontier.”

And they never asked the individual employees whether or not they ever voted for the strike.

Now, this business about whipsaw and all this other successive and so forth seems to me to add nothing but — but vituperative effort, that’s to the whole matter.

The Second Circuit never agreed that there was any substantial evidence to support such a proposition of successive whipsawing so on and so forth.

Is it — indeed the trial examiner found — well, and we say this that the language of the Second Circuit was that I suppose that it was reasonable.

It was reasonable because of the past history of bargaining.

It was reasonable to infer a threat to strike.

But there’s one other factor what seems to me to be of some significance and that is that there was the — the trial examiner at record page 27, disturbs the basic premise of the Board’s argument before this Court because the trial examiner, found at page 27 of the record in distinguishing this case from the Morand case and the Davis Furniture cases decided by the Seventh and Ninth Circuit respectively, he said, there was no evidence in the record to support the argument that the strike at Frontier was in support of demands common to all.

I paraphrase them but I think the record substantially bears that out.

So there is no proof here.

And this Court has before it the same record that the Board had before it, that the Second Circuit had before it and that the trial examiner heard, there is no proof.

And how can one extract from it and even allowing the Board, the expertness to which the Congress says it’s entitled.

How can they make such an inference of fact?

Because there is nothing — there is no facts there to support such an inference.

So we come then to the basic proposition that this was protected concerted activity.

Thomas P. McMahon:

And the trial examiner so found and the Board so found and that it was entitled to protection under the Act and there is an agreement between the parties at least that the activity of the non-struck employers in laying off there employees was unlawful because it’s in clear violation of the language of Sections 8 (a) (1) and 8 (a) (3).

8 (a) (1) because it interfered with concerted protected activity.

It’s in violation of 8 (a) (3) because it’s discriminatory.

The argument that it’s not discriminatory because you layoff all the employees is again the same threat of argument that if you do something in a large enough scale it somehow becomes all right.

It’s the way they use to solve wage inequity problems in the old days.

If someone complained about a wage inequity, they would cut everybody down to the lowest level and therefore, no inequity.

And so here, lay them all off, therefore, no discrimination.

So then — I don’t want to — to pass on problems that are not raised by the parties.

But I do think this question of the Board’s experience is worthy of some comment.

Judge Harlan asked on Thursday if this matter had ever been considered by the Board before.

Well, the — my answer is yes, Your Honor, it was considered in the Morand case on remand very extensively by the Board.

It was considered in the Davis Furniture case by the Board extensively.

It was considered by the Board extensively in Continental Baking Company case, a matter that came before the Eighth Circuit.

It was considered by the Board as recently as August of 1956, the new Board, if we — it can be so termed.

And they had no trouble arriving at the problem that there was no equation between strikes and lockouts because if the Board — if there is such an equation, then the result is obvious, the strike is foredoomed.

The Board in its decision on the remand case from which I acquired heavily in my brief and recited that length in my brief said that the — the equation of strikes and lockouts in the statute in every sense is used in a sense where strike activity is proscribed.

And to draw the inference that by proscribing lockouts in 8 (d), it makes all other lockouts lawful by the same token, one can say, that all other strikes are lawful.

And while a reductio ad absurdum applies in both cases and I think it is a valid argument.

Because if the Court is asked to say that all other lockouts are legal, then all other strikes are legal.

But in — an examination of the legislative history it shows that what was really intended, if any clear intent can be defined from 8 (d), was that according to Senator Ball, we want to prevent quickie — “quickie strikes.”

And as the same expression of intent is reflected by Senator Taft, what we want to do is not to impair the right to strike, but what we want to do is to preserve that right until after there has been a reason of a lot of opportunity for the parties to reconcile their differences which was the same expression that there are the same feeling that Senator Taft had throughout his dissatisfaction with the way the unions themselves were constituted.

And he felt that by imposing a waiting period that the matter would be more amicably resolved.

The Board adopts another thesis.

They say that if the multi-employer unit doesn’t have the right to strike out, to lock out, then they’ll all be destroyed.

But there is no proof in the records that these employers were economically weak.

He never claimed any such thing.

He never said that there was any accretive problems.

They just said that they’ve got a right to do it.

And the — the hypothetical that Mr. Justice Black posed in saying that they were just going to improve their bargaining position by locking out is not before this Court at all because they never said that that was their purpose.

They said what their purpose was and somebody said something —

Hugo L. Black:

Did they say — what did they say their purpose was?

Thomas P. McMahon:

They said that their purpose was that they were — they were laying off their employees because of, “Because of the strike at Frontier.”

And they never served any notice so they had no purpose.

They were satisfied with the status quo.

They never served any notice under 8 (d).

Hugo L. Black:

Would it make any difference if they had stated what I — the hypothetical case I suggested?

Thomas P. McMahon:

Well, I have four briefs amicus.I don’t want to get any — start any other problems that haven’t been raised here.

But I think it all depends and the situation of an employer that the cases recited in — remember Murdock’s decision, where he — the Duluth Bottling Company case and a few of those other types of cases where there were unusual economic circumstances.

I don’t agree with those.

They’re — the Duluth Bottling Company case is invidiously referred to as just to the destruction of a few cans of maple syrup.

Well, if that are — those are the facts of the case, then I disagree with it too.

But I think in the Steel Strike, for example, it’s traditional that the steelworkers leave somebody behind so if they’re going to shut the thing down, the whole capital equipment of the employer isn’t going to be destroyed.

And they say that each of us are going to be shut off from the economic market but we’re not going to destroy the golden egg.

Now, if an employer faced with such a problem as that, I think that they are present in a somewhat different situation.

But now, if you say that the real question is I suppose is that, well, I’m going to lock you out because I think if you’re a little bit hungrier, you’ll be more willing to accept my terms.

Well, I think that that’s a clear violation of the proscriptions contained in Sections 8 (a) (1) and 8 (a) (3).

Felix Frankfurter:

What was the purpose of the multiple arrangements?

Thomas P. McMahon:

Well, perhaps the only advantage that I can see from multi-employer bargaining contrary to what the Board says and they know better, and I’ll come to it a moment, is that it’s simpler.

Instead of each one sitting down with the group of employers and doing it, spread over 52 weeks, I think is probably a little easier in some circumstances to sit down and do it over — do it all together in —

Felix Frankfurter:

Economy of time?

Thomas P. McMahon:

Economy of time.

It’s the —

Felix Frankfurter:

That’s all?

Thomas P. McMahon:

It’s the only one I can see.

Felix Frankfurter:

That’s the only thing that leaders likes — and they have and wanting to have multiple bargaining arrangements, is that it?

Just — it’s just time convenience?

Thomas P. McMahon:

In the present state of the economy.

I don’t know.

I’m not speaking out what the situation was back in the 1930’s when the other organizational activity was going on.

Felix Frankfurter:

You mean, (Voice Overlap) —

Thomas P. McMahon:

But certainly —

Felix Frankfurter:

You mean that they’re not so strong that there is — that it doesn’t matter to them to get uniform agreements among the competing employer?

Thomas P. McMahon:

Well, perhaps it’s more —

Felix Frankfurter:

(Voice Overlap) —

Thomas P. McMahon:

— basic than that because Section 8 (b) (4) says that a union can’t force an employer into a multi-employer bargaining group.

They can’t do it even if they wanted to, even if a Union thought that multi-employer bargaining was a good thing, they can’t do it.

It’s an unfair labor practice.

Felix Frankfurter:

When you say they can’t do it, what do you mean by that?

Well, then again, what’s (Voice Overlap) —

Thomas P. McMahon:

It’s an unfair labor practice for them to do it.

Yes, it is conceivably possible to do.

Felix Frankfurter:

Is that (Voice Overlap) to all unfair labor practices?

Thomas P. McMahon:

Only where the Union has coerced them.

Felix Frankfurter:

Well, of course, it could.

Coercion of course is not at all along the line, so that’s a —

Thomas P. McMahon:

If — if an employer — if the Union comes to an employer and says —

Felix Frankfurter:

(Voice Overlap) —

Dominick L. Manoli:

— you —

Felix Frankfurter:

— unless you join, that’s bad.

Thomas P. McMahon:

That’s bad.

Felix Frankfurter:

Yes.

But if he persuades them, that’s all right, isn’t it?

And you say the only justification in our economy is that if they try, is that it?

Thomas P. McMahon:

As I see it right now.

Because certainly a union isn’t protected as the Board would say by — from rating activities because if you look at the cases cited at page 7 of the brief amicus filed by the Exchange, Mr. Royall, to look at those cases at page 7 of their brief, they cite four cases.

And they say, furthermore, contrary to the assertion of the Court of Appeals below, the Board has refused to allow members as well as union members to withdraw from a group while a contract is being negotiated.

They cite four cases.

Now, in Purity Stores Limited and Engineering Metal Products Company Limited, the companies were not permitted to withdraw because it wasn’t at the negotiation time.

Felix Frankfurter:

And you leave out an account wholly —

Thomas P. McMahon:

Well, I —

Felix Frankfurter:

— in view of your answer that if the Union can get six or eight or 10 employers with varying attitudes towards labor standard and with varying judgment, varying vision to get together that it isn’t an advantage to them to have people who are more farsighted to try to find and bring all the employers under a common arrangement.

You leave that out of account all together, do you?

Thomas P. McMahon:

Well, it can be very, very good.

It can be very, very bad.

I’ll say this that you will get some employers who — because they see their competitors paying the — the wage rate are more disposed to pay the same rate — wage rate because they feel that their labor cost are the same as their competitors.

Felix Frankfurter:

You mean when they put together and they talked and the judge will retire to their own rule with how it happened?

Thomas P. McMahon:

Well, if they know that the fellow is doing business across the street or down the state is paying the same as he’s paying, that it — it isn’t so bad to get a little bit more that he would be willing to pay.

There is that advantage.

But on the other hand —

Felix Frankfurter:

All right.

There is something more than merely being at the time, isn’t it?

Thomas P. McMahon:

But that’s balanced by the possibility, equally likely, that the Union might end up by all of them taking an adamant position along with the line with the fellow who is willing to depress wages.

Felix Frankfurter:

Adversely and therefore (Voice Overlap) —

Thomas P. McMahon:

The risk you take.

Felix Frankfurter:

Therefore, the question is union leadership and union judgment, whether or not these arrangements are or not for the benefit of means, isn’t that true?

Thomas P. McMahon:

Yes.

Felix Frankfurter:

All right, so it isn’t merely time to me.

Thomas P. McMahon:

Yes, sir.

Then, what the employer makes the same determination whether it’s good enough for him and he can get out anytime he wants to without any — well, he can get out at anytime there isn’t a contract in session.

He has to have no reason at all.

So why can the Board say that it’s appropriate this — for 12 and to bargain together but it — it’s still appropriate if the employer withdraws.

Felix Frankfurter:

I — I suggest to you that legal rights aren’t not the only thing that determines the conduct of either employer or employees, the business judgment and their relationship is created and persuasion is created, et cetera, et cetera, all of which play a very important part in this negotiating price.

Thomas P. McMahon:

I — I agree sir.

But I think that the Union ought to have the same rights as the employer has and I think that they ought to make a business judgment that may be it doesn’t make sense for us to strike them all.

Maybe we’d be better off just striking one.

Well, for one reason or another, we think it would be the most effective.

Felix Frankfurter:

Well —

Thomas P. McMahon:

That’s a business judgment.

Felix Frankfurter:

I understood the Board to agree that if they — or at least — at least whether or not the Union certainly no longer and we don’t care for a renewal of the collective agreement as multiple arrangements, I understand that raises a different situation, determination of the multiple arrangement is a very different story when there is a determination with a desire to continue it.

Thomas P. McMahon:

Oh, it — it shows the unfairness of the Board’s position and that was the matter that Judge Frank treated at some length.

Thomas P. McMahon:

He said that to him there was no problem in this case at all and he — most of his opinion was saying — pointed out that the Board would have a — that there’s some kind of an estoppel that works that somehow a union by doing business with a multi-employer group loses its right to strike one.

Felix Frankfurter:

But that begs the question whether he loses, I figure.

Thomas P. McMahon:

Yes.

Felix Frankfurter:

Of course, if he — if you say he had the right, then — then, there’s no problem.

But I don’t see how you can talk there’s no problem if the Union chooses to argue with — to make arrangements with 12 united into an association rather than to make arrangements from the individual.

That seems to me an industrial fact which is a very different thing with — with making an arrangement and getting into one employer.

Thomas P. McMahon:

Well, the Board in answer to the question from Justice Black said that they had a right to do it somehow from — from their authority to designate what an appropriate unit was.

They said that a union can’t withdraw because we have the right to determine what an appropriate unit is.

I say in answer to that is that if an employer can withdraw as they concede that he can and it still becomes appropriate for him to bargain with the Union vis-à-vis.

Why does it become inappropriate when the Union withdraws —

Felix Frankfurter:

I understood —

Thomas P. McMahon:

— and chooses to bargain vis-à-vis?

Felix Frankfurter:

All the argument that I got was the fact that the statute recognized against the Board’s power to certify a unit and therefore legalizes, underlying that, is the legalization of an agreement with a collective party of employer to show that it isn’t against the policy of the Act to have such a body of arrangements.

That’s a very different argument in saying that because they have the power to designate a union, a unit, therefore, this is fair.

I don’t think that therefore is a problem at all.

But I do think that, therefore, it does follow that the statute doesn’t mean it’s illegal to make collective arrangement with an associated group of employer.

That argument I can follow.

Thomas P. McMahon:

I have no dispute with that particular problem.

I —

Felix Frankfurter:

Well, then if you — if you recognize that it doesn’t require the permission to perform, you have a collective agreement with associated employer, then there is a fact that they are associated employers which creates a different situation as an industrial fact than when you have a single employer.

And that may lead to inferences of a very different order which do not come into play at all when you only have one employer.

Thomas P. McMahon:

Well, the decision was never made by the Congress and it was never made by the Board.

It was made by the Ninth Circuit Court of Appeals.

And the — the Board did not resurrect this — make its own accommodation but accepted that of the Ninth Circuit.

Now, it would just seemed to me that when you have the Board in three cases, the Morand, the Davis Furniture, and it was both muchly litigated, and the Continental case deciding that there was no such policy that the most it could be said for multi-employer bargaining is that it could be tolerated that Congress never meant to say that it is to be the preferred form and that certain rights follow from it.

Felix Frankfurter:

Well, I don’t know what tolerated means in the law.

Does it mean something that is — that is — that may be voluntarily entered into by employers and unions —

Thomas P. McMahon:

Yes.

Felix Frankfurter:

— that’s what it means?

Thomas P. McMahon:

Yes.

Felix Frankfurter:

Then, the fact that that is not against the law may create a situation, an industrial situation from which, unless there’s a limitation in the Act, certain consequences may be drawn.

Thomas P. McMahon:

Does it — do you think it necessarily — well, you will ask the question.

Hugo L. Black:

May I —

Thomas P. McMahon:

I don’t —

Hugo L. Black:

Do you understand that it would be lawful or unlawful for the Union to strike against all the multiple employers?

Thomas P. McMahon:

It would be equally lawful.

Hugo L. Black:

It would be what?

Thomas P. McMahon:

Equally lawful.

Hugo L. Black:

Does the Board take a different position to that?

Thomas P. McMahon:

No, sir.

That’s been — not — does not — not as I defined their argument.

Hugo L. Black:

Do you understand the Board’s position to be that it would be all or nothing, they would —

Thomas P. McMahon:

Yes.

Hugo L. Black:

— be the — to strike against all the multiple employers or they can’t strike against any?

Thomas P. McMahon:

That’s exactly their argument, all or none, because if you don’t, they’re going to —

Hugo L. Black:

Am I correct — am I correct (Inaudible)

Thomas P. McMahon:

His finding is somewhat ambiguous, whether or not there was an — he did not make a specific finding that there was an impasse.

On page 27 of the record, he said that this case is distinguishable from the Davis Furniture and Morand decisions at least in the courts because there was no finding here of an impasse.

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

Judge Frank said that they had bargained all through March and April and most of May and that there was an impasse and the majority of the Court agreed with him.

And he cited in the footnote, I think it’s Footnote 10 of his decision that though — the trial examiner found that there was an impasse.

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

The Board’s position is — makes the matter somewhat irrelevant.

They say that there is something —

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

Because the Union —

William J. Brennan, Jr.:

(Inaudible)

Thomas McMahon:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

There’s no — it seems to me at least no problem that they could have struck the law.

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

Well, it depends — it depends I suppose on one’s point of view.

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

My opinion was that there was an impasse.

I — I did not participate in this particular bargaining.

I have no personal knowledge but it just seems to follow that if — if you have gotten along for 13 years and the only other strike that you had is a one-day strike in 1949, and then suddenly in 1953, after bargaining for the better part of three months, you suddenly go off and strike one.

Then, I think it seems to me to follow that there was an impasse.

Stanley Reed:

If there had been a certification of this association as the bargaining unit, would that change the situation in your point of view?

Then — then, if you struck one, would you — would they have the right to lockout this?

Thomas P. McMahon:

Well, you see my position wouldn’t be any different on this particular case, Mr. Justice Reed, for this reason that whether there is a certification or not an employer can get out anytime.He can get out.

Why shouldn’t the Union be able to make its own business judgment that it had better get out?

And while something has —

Stanley Reed:

If there’s has been — if there’d been certification here, one employer could have decided to withdraw?

Thomas P. McMahon:

Yes, sir.

Stanley Reed:

He could’ve have locked — he could have locked out, could he?

Thomas P. McMahon:

Well, what — what he can do is this.

They say that a union is protected from rating.

I have cited in my decision, I believe at page 21, two charge cases issued by the general counsel.

Let’s look at the other side of the coin.

In those cases, an employer was a member of a multi-employer group for eight to 10 years.

Now, during the negotiation session —

Stanley Reed:

Certified?

Thomas P. McMahon:

Yes, sir, they were.

Because during the negotiation time, the certification petition was filed by Union B, Union A having been recognized for this eight to 10 years.

Union B files a decertification petition.

The employer withdraws from the multi-employer group and recognizes Union B.

So, how can a union by joining a multi-employer group be any better protected against rate or any other type of divisive tactic, then they would if they were dealing with them alone because he can get out for any reason or no reason by whim or caprice, an employer can withdraw from a multi-employer group.

So, I — whether it’s certified or not.

Stanley Reed:

I have a difficulty in seeing how he could if it’s a certified bargaining union?

Thomas P. McMahon:

Because they say that it’s — this matter is voluntary, because that — now, I said on — on my argument and my colloquy with Mr. Justice Frankfurter is, is that I say that if one side can get out, why shouldn’t the other side be able to get out?

Felix Frankfurter:

Well, did they get out here?

Thomas P. McMahon:

They — they wanted to do the best that they could.

Felix Frankfurter:

They wanted to keep in and strike against each individual (Voice Overlap) —

Thomas P. McMahon:

No, sir.

I’ll answer that this afternoon.

That is not so.

That what the Union was trying to do is to retain all the benefits of the multi-employer group and yet go out and do something else, Mr. Frank — Mr. Justice, was that substantially the —

Felix Frankfurter:

(Inaudible) as you referred to this Court afternoon.

Thomas P. McMahon:

Well, I know not as artistically as you would, but that the Board is made much of the fact that the Union continued to bargain with the multi-employer group.

Well, of course, they had no choice but to bargain with the Exchange because they — they — an employer can say to a union under 8 (b), (1) (B) or at least a union is restrained from saying under 8 (b) (1) (B) of the Act.

I don’t want to bargain with Mr. So-and-so.

I want to bargain with you.

I think the example given in the legislative history, 93 Cong.Rec.3837 to legislative history 1012, Mr. Taft says, this unfair labor practice referred to, referring to 8 (b) (1) (B), is not perhaps of a tremendous importance but employees cannot say to their employer, we do not like Mr. X.

We will not meet with Mr. X.

You have to send us Mr. Y.

This has been done and so a union —

Felix Frankfurter:

8 (b) (1) (B) is printed somewhere (Inaudible)

Thomas P. McMahon:

I believe it is —

Felix Frankfurter:

(Voice Overlap) —

Thomas P. McMahon:

— not printed anywhere.

I can explain why because in the Morand —

Felix Frankfurter:

But tell me first what it is or you tell me what it means?

Thomas P. McMahon:

Well, Section 8 (b) (1) (B) reads —

Felix Frankfurter:

Where are you — where are you reading from?

Thomas P. McMahon:

I’m reading from the Act itself.

It’s not printed at any place at least to my knowledge.

Felix Frankfurter:

All right.

That’s what I’m asking for.

Thomas P. McMahon:

I’ll just read it accurately.

It shall be an unfair labor practice for a labor organization or its agents, the Union, to restrain or coerce and be an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.

Thomas P. McMahon:

So the Union cannot say to an employer, “We won’t — we want to bargain with you personally.” He says, “No, you bargain with the Exchange.”

How can — what — what could the Union possibly do?

They can’t hold him down and — and make a bargain with him because the Act says, the Union has no right to say so.

Felix Frankfurter:

Does the Act require the use of bargain as — for 12 employers, of an eight?

Thomas P. McMahon:

There is a distinction —

Felix Frankfurter:

I understand the Union can’t say, I don’t like Mr. Smith, I’d go to Mr. Jones.

Would that — was that your distinction in saying, they must bargain for a — to be confederated into one body?

Thomas P. McMahon:

No, sir.

There is a difference between a personality and the scope of the bargaining.

An employer cannot say that you have to deal with my men from the Exchange and therefore deal with eight or 12 unions or eight or 12 employers.

But he can say, “You have to deal with Mr. X.”

Felix Frankfurter:

Well, true.

Thomas P. McMahon:

So that the argument and the Board never found that the Union did anything to the contrary.

But they now make much — the Board in its brief now not in its decision but in its brief now they say, “Well, the Union wanted to retain all the advantages because they dealt with the association.”

Felix Frankfurter:

What I want to know is the fact without the words that the — as a fact, did the Union say, “We no longer want to have one arrangement with these employers.

We want to have eight separate arrangements with eight separate employers.”

Did they or did they continue to want to operate with eight employers subjugated in this collective bargaining?

Thomas P. McMahon:

The Union’s position was one of indifference.

They didn’t — they didn’t care which way it went.

They were going to get the best contract for their employees and in recognizing these facts apply for which you advert to, you can’t — when you bargain all the way through March and all the way through April and finally through May, you — the — the negotiators for the Union feel tremendous pressures from within.

What are we doing here?

Felix Frankfurter:

Well, is it so difficult to cut through the fact of — of this process in order to find out whether they wanted to have an agreement with an exchange, speaking for eight employers or an agreement with eight separate individualized employers.

Is it more difficult to cut through that (Inaudible)

Thomas P. McMahon:

I don’t — I’m not troubled by the froud because the Union was not troubled by any philosophical preference.

Felix Frankfurter:

That isn’t philosophical.

That’s a very practical thing whether —

Thomas P. McMahon:

They didn’t care is the answer.

Felix Frankfurter:

I suppose.

Thomas P. McMahon:

They didn’t care either way.

Hugo L. Black:

That’s the best bargain they could.

Thomas P. McMahon:

Exactly.

They didn’t care.

Felix Frankfurter:

With whom were they bargaining for what?

Really you mustn’t read this in this kind of a vague statement.

The point of which is somewhat rather the Union was right.

I don’t think that gets a very far analysis of the problem.

Thomas P. McMahon:

In fact, everyone —

Felix Frankfurter:

(Inaudible) in the problem.

Well, as a matter of fact you were bargaining with the eight as a group, weren’t you or 10?

Thomas P. McMahon:

We were bargaining with the eight as a group, but then came the strike in Frontier.

This does not mean that the Union, and hence, and this was the question put to me.

This does not mean that the Union was striking at Frontier in support of its demands against all, solely because it continued to meet with the — the member of the Exchange.

It met with the member of the Exchange because the Act prohibits them from doing anything other than meeting with the designated representative of the employer.

Now then, the question is, what did they want to do.

What did the Union want to do?

I say that the Union wanted, as Mr. Justice Black said, to get the best deal for their members that they could, regardless —

Felix Frankfurter:

(Inaudible)

Thomas P. McMahon:

— with whatever —

Felix Frankfurter:

(Inaudible)

Thomas P. McMahon:

With all —

Felix Frankfurter:

Does it make any difference who the bargaining agency was?

Thomas P. McMahon:

That’s correct.

Felix Frankfurter:

Is that right?

Thomas P. McMahon:

That’s right.

Felix Frankfurter:

Whether they were bargaining with eight or more, that’s immaterial and whichever turns out will then say that’s what we wanted to do, is that it?

Thomas P. McMahon:

Well, I — I’d like to phrase it better but substantially, the — the answer to the question is — is this.

That the employer was the one who was satisfied with the existing situation and that is why it pointed up in the facts that he did not serve his notice.

He was satisfied with the status quo.

Now, the Union had to get something out of them and they spent the better part of three months trying to get it out of them.

Let me say this, out of all eight of them, nine of them.

Thomas P. McMahon:

Now, they couldn’t do it.

So then, they made this business judgment which I say that they have the entitlement to do of striking one of them.

Now, somehow in your question, there is — you impute some unfairness —

Felix Frankfurter:

I don’t impute anything.

I’m trying to find out —

Thomas P. McMahon:

Well, if you —

Felix Frankfurter:

— what the actual business facts were and I don’t like to be left in the part of thinking, maybe for the collective body of eight united for the purpose of bargaining or maybe it wasn’t.

We were not going to be clear about it.

We simply want to say whatever we did was right.

That seems to be an odd analysis.

Thomas P. McMahon:

Well, the trial examiner in the Board in the Second Circuit are all up in agreement that what the Union did is right.

Felix Frankfurter:

Well, I —

Thomas P. McMahon:

That not only that it —

Felix Frankfurter:

(Inaudible)

Thomas P. McMahon:

Well, I — perhaps, I don’t understand the problems but I wouldn’t think that this Court would have set such a problem because in the Morand case, the — the non-struck employers set up this defense of Section 8 (b) (1) (B) and other appropriate sections of the Act and they said you’re trying to change our bargaining representative.

They did it by way of an affirmative defense, so I wouldn’t think that this Court would now raise for employers an affirmative defense anymore than they would raise the statute against frauds and perjuries for some other particular client or — or proponent who came before this Court.

Felix Frankfurter:

Well, it to me, is an important for discovery to find out, to ascertain in order to answer this problem, of course, if the answer is obvious, then there’s no problem because if the problem doesn’t evaporate, the courts below decided this one.

If in order to understand the problem, it seems to me relevant to find out whether the bargaining was with eight employers federated together for the purpose of a collective unit, then I have to find out what the fact is.

And I gather you having thus far to say it doesn’t matter, we are right anyhow.

Thomas P. McMahon:

Well, we are right anyhow because everybody agrees that no matter what our circuit wish was, it was — it was proper, concerted, protected activity, at least up to now I should say.

And everyone seems to be agreed including the Board that this is an unfair labor practice except for the fact that there is a multi-employer group involved.

And our position has been and is now that there is nothing mystical about a multi-employer group and that’s the long and the short of it.

Furthermore, we say that the most that can be taken from a reading of the — the legislative history is, and I use the word tolerated which perhaps there are better ones, but they did nothing to disturb it.

The House majority report was going to disturb the issue and all these arguments directed to reciting the long history of multi-employer bargaining long before the Wagner Act or any of the other legislation of the late 20’s and 30’s that there was multi-employer bargaining.

The House majority reports said, we don’t care that if it’s worked out and if some dislocations occur as a result of it.

It’s bad.

And the reason that it’s bad, at least to one that I submit is the most cogent, there are number of other reasons advanced, but the most cogent one to me, advanced, I’m not saying whether I agree with it, that’s not my burden now to say that multi-employer bargaining is good or bad.

But with the House majority report and those, the more persuasive arguments submitted, was that it is going to bring the Government deeper and deeper into this multi-employer bargaining.

We can note this as a judicial fact, as a matter of judicial notice that the steel unions bargained last year with United States Steel, Bethlehem and the rest of them.

The — I think that the big three or four.

Thomas P. McMahon:

Now, according to the Board’s reasoning, there is no certification there.

There is no certification here.

By the Board’s reasoning, if next year in the bargaining or at the next time that they do bargain, the Union strikes only United States Steel.

The Board says to the Union, you might as well strike them all because if you don’t, they have the right to lay you off anyway.

Now, this was the type of thing that Congress was much distressed about.

And Senator Ives and Senator Morris felt that — there were others too, but it seemed to me that the main proponents of — of permitting the status quo said that it’s worked out pretty well in many circumstances and we ought to leave well enough alone.

And I quoted very extensively from what — in my brief from what Senator Ives said.

Senator Ives admitted, perhaps not the ignorance of Congress but the not knowingness of Congress about this problem.

And there, they said that we are setting up Section 402 of Title IV for the specific reason of finding out why and how this thing works and that there are other authorities who say that no generalization can be made about multi-employer bargaining.

I’ve quoted some of them here.

But I should also like to call the Court’s attention to this report made by this special committee, set up under Title 402 of the Act and it’s not in my brief.

It’s 80th Congress — 80th Cong., 2nd Sess., Rep.No.986, Pt.5, and this was after an investigation of the west coast experience.

It’s Rep.No.986 of the 80th Cong., 2nd Sess.

And I quote from their conclusion, “Multi-employer bargaining has in different industries than both an instrument of peace and of war.

In some context and some environments, it has been conducive to the preservation of industrial peace.

While in other instances, the opposite result has been produced.

The conclusion seems inevitable that it is not multi-employer bargaining which has produced either result.”

So, whatever the great authorities in the field seemed to feel about how good multi-employer bargaining is the only evidence that we have from this committee set up under Title 402 is that the results are inconclusive.

And other matters that they say is that there are not as many strikes in the multi-employer bargaining.

Well, that — perhaps Congress isn’t so impressed by that.

Maybe they — Congress would look at the magnitude and the economic dislocation of one strike.

Perhaps to use — since all of these arguments bristle with phrases of war.

Perhaps, the Congress feels that a number of police actions are better than one major catastrophe.

I submit at least that that’s the possibility.

But I — that the bone and contention of my argument is that whether multi-employer bargaining be good or bad is for the Congress to decide.

And Congress, as I say, has said neither, it’s allowed it to continue but the Congress never said this.

The Congress never said it’s so good that we’re going to allow an employer to lockout his employees solely because he becomes a member of that group.

I say that what the Congress felt was that they’re — they’re to be treated just like everybody else and if — if there are some benefits which they can gain from this form of bargaining, fine.

If there’s some that they — if they feel that it is now become unsatisfactory, let them withdraw.

I say that the same reasoning applies to unions and that’s the long decision, the long part of this decision that Justice Frank in — in his decision in the Second Circuit was alluding too.

Thomas P. McMahon:

He said that — and that he was — the bone of his contention was is this, his decision is very simple.

This activity by the Union is protected, concerted activity, strike activities, concerted activity and this Court has said so that it is protected.

Nobody has ever said to the contrary, the trial examiner so found, the Board so found and the Second Circuit accepted.

This activity does layoff of the employees is a clear violations of the plain language of 8 (a) (1) and 8 (a) (3) of the Act.

William J. Brennan, Jr.:

Well, in that connection, may I ask, Mr. McMahon, this comes back to the question I asked you before recess.

In your support of the opinion below, do you dispute this sentence at page 51?

In any event, we think that the Union here met the task established by the Board in the Morand case.

That is an impasse in the bargaining with the association had been reached before the Union called the strike at Frontier.

Thomas P. McMahon:

And I think he points out in the footnote some — there is some contradiction between what he says in the footnote and what the trial examiner said.

William J. Brennan, Jr.:

No, I’m asking whether you support —

Thomas P. McMahon:

I think that there was an impasse.

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

Yes, Your Honor, for the reasons I gave.

William J. Brennan, Jr.:

(Inaudible)

Thomas P. McMahon:

But I — as I say, I have no personal knowledge of that.

Hugo L. Black:

May I ask you this question?

Thomas P. McMahon:

Sure.

Hugo L. Black:

Suppose you challenged — you say that first premise upon which the court below acted, you said the first premise, I don’t — maybe the others don’t really, namely, that an individual employer has no right to close the shop within bargaining with its agents and so-called non-organizational controversy.

I assume you would agree that — sad to say that if this was done to prevent organizations and its men, that was an unfair labor practice.

But as I understand it, it’s been cited here that that’s — was not the purpose.

Suppose you — suppose that premise on which Judge Frank told is wrong as — and entered in some degree.

Both of the employer does have a right to close his shop.

What would you say about the case now?

Thomas P. McMahon:

An employer — I say it in two bases.

Number one, I say that the distinction between destroying a union and defeating a strike to quote the language of this professor who was quoted as recommended — cited as recommended reading from the Court — to the Court last Thursday.

He — he says that that distinction is absurd because to go back to the —

Hugo L. Black:

Do you agree with that?

Thomas P. McMahon:

I don’t — don’t like to use extravagant words but I don’t think there is a valid distinction, no, because to go back to the long list of lockout and shutdown cases that occurred during the 1930’s, all of which were before the Congress in 1947, they said, you can’t — and all these cases said in substance, I am paraphrasing.

You can’t layoff your employees to defeat an organizational activity.

Now, with the answer of — in any different, if they said, “Come in and organize.

Thomas P. McMahon:

Now, I’m going to layoff until such time as we get a satisfactory agreement.”

I don’t think that there was a difference, Your Honor, between — I don’t think that employers are disturbed about unions because many of them are content with company unions.

But what they don’t like — and so the Congress has found, they don’t like barrel unions, unions that are going to make demands at them — upon them that they feel are unjust or unfair or going to put an economic burden on them.

I think Mr. Justice Hand said in the case of Peter Cailler Kohler, the Congress waived to the conflict of the employer’s interest with his employees and has pro tanto, showing of his powers.

That — that — it seems to me that there is no valid distinction between a lockout to defeat organizational activity and a lockout to — to defeat concerted activity.

Hugo L. Black:

Well, if there had been a legal right or — which one did you strike against here?

Thomas P. McMahon:

Frontier.

Hugo L. Black:

Let’s suppose of legal right, the Frontier strike or Frontier to close his store.

Thomas P. McMahon:

Of course, they didn’t close its stores.

Hugo L. Black:

(Voice Overlap)

for the premise.

Thomas P. McMahon:

Yes, sir.

Hugo L. Black:

Or to — what — what did they do to just —

Thomas P. McMahon:

Well, Frontier did.

The rest of them just laid off their truck driver employees.

Hugo L. Black:

Well, just laid off the truckers, they didn’t close the business?

Thomas P. McMahon:

No, sir.

Before, it said — there was a shut down —

Hugo L. Black:

Would that — that — would that be a shutdown or would that be a — something else?

Would that be a close out?

Would that be what the statute talks about?

Thomas P. McMahon:

Well, I — I tried not to use — get involved in the words lockout or layoff.

I tried to talk about the language of 8 (a) (1) and 8 (a) (3).

Hugo L. Black:

I’ll tell you why I’m interested.

I’m interested with this reading.

The question has been raised, maybe it’s not here and maybe you can tell me.

The question has been raised that a single employer had a right to do this, a contracting event, and some history of the original Wagner Act to decide it and the Taft-Hartley in reference to the employers’ right even after the Act was passed.

Now, assuming that those Acts do leave an employer, a single employer, free to bargain by saying out or do what they can, assuming that it does, what would you say would happen to your case here?

Thomas P. McMahon:

I’d take a slightly different argument.

I will say this that assuming that Ford Motor Company has the right upon a strike to layoff its employees, I don’t — I say this that Ford would not have the right to layoff its employees merely because a strike at General Motors because then you have a sympathetic lockout.

Hugo L. Black:

Even though there was a collective bargaining agreement which both sides had agreed to?

Thomas P. McMahon:

Well, let me — I’m assuming some knowledge of the history that we have — had in bargaining in the automobile industry.

And that the history has been that each time they — they take General Motors first, then they seem to take Ford and then Chrysler and the rest.

Now then, Ford can make and everyone I think would agree that a strike at General Motors, there is an inference that can reasonably be drawn that there’s going to be a strike against Ford just like here.

Now, what I say is and the Board agrees that absent something about a multi-employer unit that Ford couldn’t lockout merely because of the strike at — at General Motors.

I don’t see why they could.

Hugo L. Black:

Well, if one would — I’m not saying anybody would.

Thomas P. McMahon:

Because then you’re —

Hugo L. Black:

And one would agree, you have (Inaudible) in that, there are two others — that right is the same of the employer, whatever it is, whether it’s an individual or contract or multi — multi-party contract within the (Inaudible), then would you not be compelled to reach that next question that’s argued that if it were a single employer?

Thomas P. McMahon:

I think we’d have to stop with the first question to decide whether — whether that first one is so.

Then, if — if the first one is — if the first premise is so that an employer has a right to layoff his employees to impoverish them so that he can get a better bargain —

Hugo L. Black:

Yes.

Thomas P. McMahon:

— then the next — then the premise, the series of premises which the Second Circuit used would not be — we couldn’t follow those because the — we take one thing out of the chain, then you would have to say — then the argument would be, well, even if he can do it alone, even if an individual employer has a right to layoff his employees, to impoverish them so he can get a better bargain, he can’t do it in support or to — as — as a condition of making a union stop striking somebody else which is our case right here.

I’m not sure —

Hugo L. Black:

Have you — have you answered the argument I’ve just presented, is it irrelevant?

Thomas P. McMahon:

The equation of strikes —

Hugo L. Black:

Referring — referring to the original Wagner Act history and the language that does on the Second Circuit indicate that shot outs or whatever you call it, lockouts are permitted and that means that other lockouts are permitted.

Have you —

Thomas P. McMahon:

I’ve dealt with that extensively in my brief.

But I — I would say this that maybe some lockouts are permissible and — and for that — that question I think is not before the Court.

The question is –is — if I would have the procedure be and I — I would persuade you if I could that this is the approach is that perhaps the Wagner Act said nothing about lockouts.

Well, the Wagner Act said is you can’t violate Sections 8 (a) (1) and 8 (a) (3) and the State did.

Now, whatever you — you choose to call that particular kind of activity with the type of shorthand phrase you choose to use to label it.But all we say is — says — the Wagner Act says is that you can’t discriminate you can’t discourage concerted, protected activities.

And this is a clear violation of Sections 8 (a) (1) and 8 (a) (3) on the language on its face and by the decisions of this Court which I have cited.

I would also say this that the distinction between a layoff or something to defeat organizational activity and something to — to defeat concerted, protected activity, I — I didn’t treat that at some length — at any length in my brief.

In fact, I didn’t treat it at all.

But I — I would say this that the phrase, other protected activities for the purposes of collective bargaining or mutual aid or protection, from my study of the statutes first appeared in the Norris-LaGuardia Act and the Purposes Clause.

And the Norris-LaGuardia Act was distinguished from the cases decided by this Court, the Adera case and Coppage versus Kansas which were criminal cases, one federal and one state prohibiting discriminations against unions.

And in the legislative history of the Wagner Act or not of the Wagner Act, excuse me, but in Section 7 of its predecessor 9 NIRA of the National Industrial Recovery Act.

Mr. Gompers, who had been so disappointment with these results under Section 20 of the Clayton Act changed the language of the committee and borrowed almost word from word for the language of the Norris-LaGuardia Act, which said — he Norris-LaGuardia Act says, I just want to say in shorthand fashion, the federal courts will keep out of this business.

Thomas P. McMahon:

They won’t make day-to-day judgments which are half judicial and half legislative.

The Section 7 that we have before us was that they not only have the right to organize, they have the right to choose representatives of their own choosing, but they have the right to engage in other protected, concerted activities for the purposes of collective bargaining or their mutual aid and protection.

Felix Frankfurter:

You can’t find out what they are merely by reading the Wagner Act or the Taft-Hartley Act because this Court in dealing with a number of situations makes clear that that kind of (Inaudible) is the words where reading a statute sit down strikes, consistent stoppages, et cetera.

This Court said is not what is meant in — in taking out of the little language of the statute, so that it was within the statute.

Thomas P. McMahon:

But at least it’s —

Felix Frankfurter:

You can’t read a complicated statute like this dealing with complexes of industrial relation to just say all you have to do is to say you’re allowed to strike, even to strike you and me.

That’s not the way to read such a statute.

Thomas P. McMahon:

Well, no.

I’d — I say this is not only concerted activity but it is that type of activity for the improvement of wages, hours or working condition.

Felix Frankfurter:

So we could sit down.

So we’ll just sit down and invite all these other persistent interruptive stoppages.

Thomas P. McMahon:

But —

Felix Frankfurter:

And there, they come from the point of economics, from the point of the great communism, nobody who knows anything about it would assume to have any other purpose except to grant their position in which one might have the greatest sympathy in the world.

Thomas P. McMahon:

But there is a distinction between the means which —

Felix Frankfurter:

That brings us to this question, whether the fact that there is such a collective relationship here, whether that does not necessarily bring into play with that Court (Inaudible) single employee.

Thomas P. McMahon:

Well, my only answer to that is that I don’t see why unions or employees should be treated any differently.

And I don’t see how we can hear in a judicial form make a legislative judgment that now because they are in — because employers are in a multi-employer group, they are ipso facto weaker than employees.

When the legislator — legislature — the Congress has made the judgment as they did in the Wagner Act, then employees are weaker than employers.

Felix Frankfurter:

You yourself have said we’re not in the 20’s anymore.

The idea of reading this statute and — and conduct under it as though nothing has happened in the industrial world, as though unionism has to attain a place and exercise the function that it does is to act and to deal with that statute instead of what the greatest reality in the world.

Thomas P. McMahon:

But the Congress —

Felix Frankfurter:

(Voice Overlap)

Thomas P. McMahon:

But the Congress retained that judgment in — in the legislation of 1947.

Felix Frankfurter:

(Voice Overlap)

decide because Congress hasn’t spoken with that fact even — with which you seek.

Thomas P. McMahon:

Well, insofar as the — who is the weaker, the Congress said at least in their findings said so, now whether they meant it or not is, I suppose is what we’re here for.

But the Congress said that employees are weaker than employers doing business in the form of corporations or associations.

Felix Frankfurter:

That doesn’t finish the problem.

I can’t bear the weaker and therefore, everything they do, they not bring about protected activities for employers.

Thomas P. McMahon:

What I’m saying though, Your Honor, is that the Board can or cannot say that just because you have a multi-employer group that the employers are weaker.

Felix Frankfurter:

That’s why we’re here.

Thomas P. McMahon:

Well, I — that’s — I’m arguing that point and the scheme of the Act of 1947 was not to grant —

Earl Warren:

You may finish the sentence.

Thomas P. McMahon:

— was not to grant further weapons to expand the area of conflict to the employers but to proscribe certain practices of certain labor organizations.

Dominick L. Manoli:

Mr. Chief Justice.

Earl Warren:

Number 1 —

Dominick L. Manoli:

Mr. Chief Justice, I regret that I misread the signal for my — precluded General Royall in representing one of the amici from 10 minutes of our time which we consented.

I hope the Court can see fit to give him a few minutes.

Earl Warren:

Well, I think you’re asking an indulgence that we don’t grant, as you know Mr. Manoli, you were — you were advised.

I saw the light come on.

I wondered if you were going to continue, but General Royall asked for time to argue in this case.

It was denied but we did give to him and give to all the associations in the country the right to file briefs.

And you knew that you could give him such time as you wanted of your time, you used all the time, I’m afraid we’ll have to go on.