RESPONDENT:Truck Drivers Local Union Warehousemen and Helpers of America, A.F.L.
LOCATION:SS Rosina Marron
DOCKET NO.: 103
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 353 US 87 (1957)
ARGUED: Jan 17, 1957 / Jan 22, 1957
DECIDED: Apr 01, 1957
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.
Number 103, National Labor Relations Board, Petitioner, versus Truck Drivers Local Union Number 449 et al.
If the Court please, this case is hereon writ of certiorari to the Second Circuit Court of Appeals.
The court below dismissed an order of the Board, to set aside an order of the Board, dismissing a complaint involving that the employers involved in this case had laid off their employees in violations of the — violation of the National Labor Relations Act.
The question presented in this case is whether a group of employees who have been dealing with the Union representing their employees through an association for the purpose of arriving in an agreement covering all of the employers may lawfully suspend operations without violating the National Labor Relations Act.
When the Union strikes, one of the employer members of the Association and that strike carries with it the implicit threat of — of successive strikes against the other employer members of the Association.
The facts in this case were stipulated by the parties and I may very briefly summarize them.
The employers in this case are some linen supply companies located in Buffalo, Dunkirk, and Niagara Falls, New York.
They are linen supply companies and I suppose another word might be the term, laundries.
They each employed truck drivers ranging in number from two to 22 — 22 men.
These truck drivers in turn are represented for purposes of bargaining by the respondent Union.
And the employers here have been represented for some 13 years for purposes of collective bargaining by an association called the Linen and Credit Exchange.
The Linen and Credit Exchange had carried on negotiations with the respondent Union and the practice has been during these past 13 years for the Association and the Union to negotiate — seek to negotiate an agreement.
In the event that they arrived at such an agreement, then this agreement is in turn submitted to the employer members of the Association.
And if a majority of these employer members of the Association approved that the agreement then all of them signed.
Now, in March of 1953, the Association and the Union, consistent with this practice, entered into negotiations for a contract to succeed the existing of current contract which was to expire in April of that year.
They negotiated for several weeks and after several weeks of negotiations, they were unable to arrive in an agreement.
And in May, sometime in May, the Union called a strike against the Frontier Linen Supply Company.
The Frontier Linen Supply Company is one of the eight employer members of this Linen Exchange — Linen and Credit Exchange of this employer bargaining association.
And thereupon, the Union placed the picket line around the premises of the Frontier Linen Company.
The other — the employees of the other employers remained at work but on the following day, however, the other seven employer members of the Association suspended operations, laid off their employees and at the same time, they notified the — they notified the respondent Union that they would resume operations when the Union called off its strike against Frontier and also remove the picket line at that place.
Following the calling of the strike against Frontier by the Union, and following the suspension of operations by the other seven employer members of the Association, the Union and the Association continue to bargain, continue to negotiate for the purpose of arriving in an agreement.
And within the week, or by the end of the week, they did arrive in such an agreement which was satisfactory to the employers, and thereupon, the Union called off the strike and the — all of the– all the seven employers who with suspended operations, as well as Frontier Linen Company, resumed operations and the men returned to work.
The Board and the court below, upon these facts, agreed that the strike against Frontier, one of the eight employer members of the Association, carried with it the implicit threat of successive strikes against the other employer members of the Association.
The Board concluded that this selective whipsawing strike technique was calculated to destroy the employer solidarity, the employer collective bargaining position if you will, which is the — which in the Board’s view is the principal purpose for their entering into this multi-employer bargaining relationship.
In the Board’s view, this unity, the preservation of this collective bargaining position is entitled to protection under the statute, and to that end, the employers against whom — the employers may suspend operations and counter with concerted action, the selective strike by the Union against one of their members, the purpose of which, of course, is to bring about a capitulation of the entire group.
The court below, on the other hand, disagreed with this conclusion on two grounds.
First, it concluded that the strike against Frontier was tantamount to a withdraw by the Union from the multi-employer bargaining relationship which had existed for some 13 years.
On that premise, the Court said there was no basis for differentiating between an individual employer and an employer who is the member of an association that, in either case, where an employer suspends operations in anticipation of a strike, he is engaging an unfair labor practice within the meaning of the federal — of the National Labor Relations Act.
Secondly, the Court, meeting the Board upon its own ground, concluded that the employers’ interest in preserving their solidarity and preserving their bargaining position as against the Union was not — has not been given — given a such recognition by the National Labor Relations Act as to permit the accommodation in which the Board has made in this case.
Accordingly, the court below, as I’ve indicated before, set aside the Board’s order would dismiss the complaint against the employers here and remanded the case to the Board.
Now, at the outset, I think, in order to understand more clearly the issue which is involved in this case, I think it is important to deal with the initial premise of the decision below, namely, that the strike called by the Union against the Frontier Company was tantamount to a withdrawal by the Union from the multi-employer bargaining relationship with the employers, and that on that basis, this — the lockout here was not to be differentiated from a lockout by an individual employer who is not a member of an association and who suspends operations in anticipation of a strike.
The Board itself did not reach that issue in this case?
In fact, it reserved this issue on the question of the legality of a bargaining lockout in the hands of an individual employer who is not a member of an association.
What’s your view about that?
I noticed one of the amicus briefs makes a very strong argument.
There’s nothing wrong in that.
Well, Your Honor, the Board reserved their decision in this case and hasn’t come to grips with it.
And I, as the spokesman of the Board, I have no views until the Board speaks on that matter.
But whatever the answer may be to that, Your Honor, I don’t think that we have to reach that question in this case, because on the basis of the record in this case, it is unnecessary to determine whether or not a lockout by a single employer gives or is not an unfair labor practice under the statute.
The record in this case shows that after the Union called the strike against Frontier, it continued to negotiate with the Association and finally arrived in agreement with the Association for all of the employers.
There is no suggestion in this record that the Union fall under strike against Frontier attempted or sought or intended to reach individual agreements with the various employers as might have been the case if the Union had sought to withdraw from this relationship which had existed for some 13 years.
William J. Brennan, Jr.:
Well tell me Mr. Manoli, as I gather it, the Board power that — actually, this was a whiplashing technique, I think —
William J. Brennan, Jr.:
— per se.
And the Court said that on the contrary that it was a withdrawal —
William J. Brennan, Jr.:
— from the arrangement.
Now are they fact findings?
I think the court below said in effect that a strike, in these circumstances, is as a matter of law a withdraw by the Union.
And then in connection with that, you may —
William J. Brennan, Jr.:
Well, when you don’t urge that those are contrary to finding a fact in — by the Court from that which by the Board?
I — I’m emerging that — that the Court aired in viewing the strike as a withdraw that realistically the strike must be viewed as nothing more than simply a tactical maneuver on the part of the Union by the selective — by selecting each employer — each employer one at a time as a tactical maneuver to exploit the Union in order to obtain capitulation by the entire group.
Now, the issue, therefore, as we see it in this case is whether a union which has been bargaining upon this basis may squeeze the advantages out of this relationship and at the same time pick all of each employer one at a time without covering joint concerted action on the part of the employers.
Now, the Board, originally, on this issue in the Morand case held that it was an unfair labor practice for the employers to suspend operations in anticipation of such a strike.
Three Circuit Courts of Appeal that dealt with that issue disagreed with the Board and held that such in a lockout is a call or suspension of operations was not an unfair labor practice.
The Board reconsidered this whole problem in this case and has arrived at the conclusion that a suspension of operations by these employers who are members of a multi-employer bargaining association is a lawful and permissible defensive weapon as against these — these selective — the selective whipsawing type of strikes which as I’ve said is calculated to exploit the Union in order to bring about the capitulation of the entire group.
Now, I hardly need that, I think after little words that the answer to this very chronic question has been — is a difficult one, it certainly has been a difficult one for the Board.But nevertheless, as the Board now sees the issue, we think that the resolution of this question cause for an accommodation of the employers’ interest in preserving their bargaining position, in preserving the integrity of the — of their multi-employer bargaining relationship and interest which I — so later show, we think, that the statute recognizes as one entitled to protection and, as they say, in accommodation between that interest and on the other hand the employees right to strike which, of course, the statute also protects.
We had — closing up in the second — Mr. Manoli, in your brief — I’m just asking —
— is the other equal protection and criminal — do you set forth the whole history of this problem or is there any place that this must have a considerable history to strike, does it not?Is that set forth in your brief and is there any — I gather from my own reading of the past, they’re — they’re not of the few that living the literature of a right —
— now, would you mind indicating that one doesn’t — want to get the whole carload, whether the two or three — there’s discussion of the — being apart from — as — as the Board (Inaudible)
Your Honor, in the Morand case, the Board dealt with this problem at some length.We have cited that in our brief.
We’ve also cited the Court’s decision —
What’s the name of that case?
The Morand case.
That give the history before the Board.
And I take that your brief will give the history before the Court.
We have first set forth the various cases —
It’s a number of decisions as I recall.
Yes, we’ve set those forth in our brief.
We have also —
Outside of that thing academically or inform them that you — what is there that you would recommend one to read?
I would recommend two articles, Your Honor.
One is by Professor Koretz which is cited in our brief, and recently there was a —
The Syracuse University.
It’s cited in our brief, both articles.
He wrote two articles, the Lockout and then the Lockout Revisited.
And the second one which I think is very valuable, Your Honor, and I’ve only come across it just recently.
It’s the Chicago — the latest edition of the Chicago Law Review.
There is an article by Professor —
Professor Meltzer and I think you —
That — that this is the latest number?
It — it just come out.
It just come out, that’s right.
I read it only last week.