National Labor Relations Board v. Wooster Division of Borg-Warner Corporation – Oral Argument – November 21, 1957

Media for National Labor Relations Board v. Wooster Division of Borg-Warner Corporation

Audio Transcription for Oral Argument – November 20, 1957 in National Labor Relations Board v. Wooster Division of Borg-Warner Corporation

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Earl Warren:

Number 53, National Labor Relations Board, Petitioner versus Wooster Division of Borg-Warner Corporation.

And Number 78, Wooster Division of Borg-Warner Corporation versus National Labor Relations Board.

Mr. Davis, you may proceed.

James J. Davis:

May it please the Court.

One thing that I would like to correct in my argument of yesterday, I — my memory played me false and I made a — an inaccurate statement of facts in response to your question, Mr. Justice Brennan, as to whether or not there was currently a contract between the parties, there is.

At the expiration of the contract negotiated which gave rise to this controversy and another three-year contract was entered into.

It is still in effect, still being administered and has not quite two years yet to run.

William J. Brennan, Jr.:

So, that is the signatory for the union there and also the local?

James J. Davis:

No, sir.

The signatory there was the International.

That contract was entered into during the period when certiorari was pending and there was outstanding the order of the Court of Appeals enforcing the contract so that the company made no question about that and the contract was — that contract was signed by the name of the International.

Now, I’m not entirely satisfied that I fully answered the questions which the Chief Justice directed to me last evening.

Because of the shortage of time, I was trying to truncate the answer and I’m not sure that the question can be answered as summarily as I attempted to do because the question in its full implication goes to the heart of the whole case and I — I don’t believe that it can be answered summarily without a little further explanation.

And I would like with the permission of the Court to address myself to that question now, which as I recall was in essence.

“Mr. Davis, aren’t you departing from the certification of the Board and if you are, by what right do you claim to act in — in essence?”

I think that was what you asked me, Your Honor.

Earl Warren:

That’s right.

James J. Davis:

And of course, that goes to one of the fundamental issues in the case and I think requires a little further analysis than I was able to make last night.

Now, in the first place as I view the statute, there is no magic in certification other than to identify the representative through whom bargaining is to be carried on.

The Board itself as we have indicated in our brief has held that the function of the certification is only to name, i.e. identify the bargaining representative and has no purpose to either delimit or delineate the bargaining agents’ functions.

Therefore, once the certification has been made as I view it, the parties are in no different posture.

Then, it would be the case where the bargaining agent to present itself to the employer and be recognized voluntarily.

The — the certification does nothing but identify the bargaining agent.

Now then, to go further and this is where it gets to what I conceive to be the heart of the case and what I meant yesterday in part when I said to date, I think both Board and lower courts have attempted to reach this case from the top or these — these cases from the top down and instead of starting at the bottom and laying the statute there and — and working the thing up.

Now, there is — it seems to me a clear distinction between the statutory requirements for bargaining and contracting or be it that I fully recognize that the execution of a contract, evidence in an agreement reached is mandatory under the statute, under the Act.

But we’re charged here with a failure to bargain in violation of 885.

Now, bargaining as prescribed in the Act says nothing about recognition or status or any other words of that import.

What the statute says is that the bargaining agent having been identified by certification or otherwise that then we are compelled to meet and confer, that is every employer is compelled, to meet and confer in good faith with that bargaining agent.

To the end, that agreement may be reached, but there is no compulsion to contract until agreement is reached and then only as evidenced of such agreement as is reached.

There is no statutory mandate that the contract shall be in the name of the bargaining agent or in the name of any branch or part of the bargaining agent.

James J. Davis:

The statute simply says that we shall meet and confer with the bargaining agent and with no other, which we did admittedly.

There is no question about that.

Now, it is perfectly clear and I think without dispute and certainly evidenced in our brief that the question of how the bargaining agent is to be identified in a contract is a usual and frequent subject of bargaining.

Now, if — if identifying the bargaining agent in a name other than the certificate or in a name other than the card which is presented to the receptionist when the union comes in for voluntary recognition, derogates the union status.

The union is no more free so to derogate its status than are we, because the statute imposes a reciprocal obligation as I read it.

We are compelled to recognize exclusively the representative status, so to speak.

We are to bargain with no other.

But the union is equally under a mandate to bargain with us, as the exclusive representative.

And it seems to me that we are no more entitled, that the union is no more entitled.

It has — it has gone to the electorate.

It has sought a charter of representation.

And if there is magic in the particular name, the union owes the same obligation to the people, not to derogate from the representation authority which had — with which it has been impressed with as we all not to attempt to dilute it.

Now, it seems to me therefore that this question of the name in which a union is to be identified is not a question of recognition at all.

Earl Warren:

Well, isn’t it a question of more than a name.

Isn’t it a — isn’t — aren’t they two different representatives?

James J. Davis:

I don’t think so, Your Honor.

The union is — it’s a whole and the parts.

Now, they are two separate —

Earl Warren:

Well, isn’t that —

James J. Davis:

They are two separate labor organization.

Earl Warren:

Isn’t that for them to determine, not you?

James J. Davis:

I don’t think so, Your Honor.

Not if it is a term or condition of employment.

Now, my — my point is right or wrong and I — I want to try to make my point clear anyway and then — then go on.

My point is that so far as recognition is concern, the word is not used in the statute.

The mandate of the statute is to meet and confer to the exclusion of any other and that we did and in good faith.

We are — the three mandates in the statute, to meet and confer forum, to meet and confer to the — with the union to the exclusion of others and in good faith and about terms and conditions of employment.

We did meet and confer.

We met and conferred with every representative of the — the union presented to us.

We never turned anybody away.

James J. Davis:

We met and conferred in good faith and I think in essence that this case really is only — involves whether or not these two proposals were or were not terms or conditions of employment.

Now, if — if they are two entities, as Your Honor suggests, then not only this employer and this union have misconceived the statute, but still have many, many other employers and many, many other unions.

Earl Warren:

Do you mean by that that there is a practice of employer (Voice Overlap) —

James J. Davis:

There is —

Earl Warren:

— what you have done there to refuse to — to recognize the —

James J. Davis:

There is a —

Earl Warren:

— the representative that — that has been certified.

James J. Davis:

Well, that jumps, the first fence, you see Your Honor, if I may say so.

The short answer to that is yes.

Earl Warren:

That that is the practice?

James J. Davis:

There is such a practice.

Felix Frankfurter:

How do we ascertain that?

James J. Davis:

I have tried to evidence it in the brief by a reference to BNA, CCH, other recognized bargaining tools to show that the subject of how a union is to be identified is a common subject of bargaining and is recognized by both employers and unions as a proper subject to bargaining.

Now, in the — not only is that a general industrial practice, but as I attempted to call to the Court’s yesterday, it is a fixed practice with this union and even more sharply between this union and this employer.

Because in the Wooster Division, the union there bargained right up to a strike for expansion of the representative from the certified local to a recognition of the local and the international.

Now, if the certificate means that the person named therein must be dealt with and contracted with to the exclusion of all others then to add a joint sort of a party to the contract is just as much a derogation of the exclusivity as is a contraction of it and even if we were to return to the question of the common law right of the designated bargaining agent exclusively to enforce the contract, if we add another necessary party plaintiff, we are derogating from that exclusivity.

Now, so far as administration of the contract is concerned, and these are all the same type subjects, Your Honor.

It is a common bargaining practice to bargain about the size of a grievance committee with — with the designated agent whether he be certified or voluntarily recognized, the size of a bargaining committee, the personnel of a bargaining committee, the size of a grievance committee, the personnel of a grievance committee.

Will it be — include local or international officers?

The — in the grievance procedure that steps at which the union, the bargaining agent will be represented solely by local representatives or solely by international representatives or by both.

These questions, once recognition and I conceive recognition to be to meet and confer with none other in good faith and I find nothing in the statute to mean otherwise.

Once that is crossed then these questions and these — these things work both ways.

I mean, this isn’t a one way street for employers as — as the Court well knows.

I mean, there is this — this flexibility of the — of subjects of bargaining.

The bargaining area isn’t — isn’t a fixed area.

We will know the chagrin which many employers felt when the Inland Steel case was first decided and they found out that pensions were bargainable.

Now, in retrospect when — when one wonders how anybody perhaps might have so conceived, but the — these questions of bargaining, the questions of how the union shall operate or how the company shall operate in this type of area are — are clearly recognized as bargainable in practice, in —

Felix Frankfurter:

(Voice Overlap)

James J. Davis:

— practical application.

Yes, sir.

Felix Frankfurter:

I would ask you what I — I hope Mr. Manoli would have time to answer it, too.

When one says practice, this is — that practice is to bargain about this even for myself, if that were established that it is a practice to bargain about what you call identification of the (Inaudible)

James J. Davis:

Yes, sir.

Felix Frankfurter:

That would be very important for me.

By practice, I mean, do you mean anything different by the taxes, has conveyed the idea of a substantial uniformity of instances dealing with the particular subject.

Now, the things you referred in your brief, it don’t seem to me to clarify that concept of practice because some employers refer one, some employers refer another.

Some unions prefer one.

Some unions prefer other.

That’s a very — what you quote there, I haven’t read the — but you don’t uphold, I’ve read what you’ve said, that’s not.

James J. Davis:

Well —

Felix Frankfurter:

That clearly means that there are certain preferences of individual instances and individual context.

That’s a very different thing from marshalling evidence there.

When they sit down at the bargaining table, in fact, what was sought here is a — a quantitatively recurring insistence at the bargaining table establishing itself within the — within the acceptance of industry as a kind of thing about which they can be bargained.

James J. Davis:

Well, I may try to take that apart for a minute and add — and I will try to answer it, Your Honor, because it — it — my time is running out, but it’s — it’s important.

There is not as far as this union and this company is concerned, this was their first contract.

There is not a practice in the sense of a common law accustomed to be pleaded and proved.

Felix Frankfurter:

Well, I would be very sticky about that —

James J. Davis:

In — in —

Felix Frankfurter:

— because it produces a lot of —

James J. Davis:

In some instances — now in some instances, the steelworkers for instance have a universal practice of insisting that the contract be with the International Union.

They do not let their locals sign a contract as a uniform practice.

The Teamsters and hoisting engineers for instance, in the hoisting engineers, you deal — you bargain with them and you have a contract signed with the local and Central Wooster has got a stamp on it to prove this to form only and that’s the only thing that International has to do with it.

I think the Teamsters insist on contracts being their local range.

I think that they do that to avoid as they think legal liability.

Now, whether they are right in their — in their legal concept, I don’t know and I don’t care for the purpose of this case.

What I am saying, Your Honor is not that there is a practice of either union even though there is in some instances, but not as applied here that there is a practice either of unions uniformly to insist on one thing or a company uniformly to insist on the other.

What I am trying to say to the Court is that there is a general recognition on both sides of the bargaining table that the way in which a union is identified in the contract has a — such a relation to terms and conditions of employment as to be likely to have and affect thereon and therefore in my opinion.

It becomes a term or condition of employment subject to bargaining.

Now, there is implicit in what you say, the other question, as to if we’re going to determine whether things are bargainable or non-bargainable by practice, when this practice begin and when this isolated instance ceased to be such and become practice.

And therefore, when does a given subject of bargaining become legal after having been illegal because it was not a recognized practice.

James J. Davis:

That is at the heart of this case, too.

Now, let me go quickly to this —

Felix Frankfurter:

But we can’t go — there is no formal appeal.

There is no code of labor law which tells us —

James J. Davis:

Correct, sir.

Felix Frankfurter:

— what is fairly includable —

James J. Davis:

Correct, sir.

Felix Frankfurter:

— on the term of employment.

James J. Davis:

Correct, sir.

Felix Frankfurter:

But if the people who day by day or week by — or year by year sit down and heckle about a thing as affecting their industry.

That for me is a part for demonstration that that’s related to the industry.

James J. Davis:

That is my point, Your Honor, sir.

Now, we go next to the — to the strike clause which is in the same category.

Earl Warren:

Well, before we leave that, let’s take a situation like the Steel Industry where you say they — the union invariably insist that they — they — the contract you signed with the International.

Supposed that’s a matter of internal organization with the — with the steelworkers union and that the locals have no right to — to bargain separately.

Do you still insist that the employer would have the right to bargain and — on that question and insist that the local sign the contract instead of the international?

James J. Davis:

Suppose if the certification, Your Honor, is of Local 1260, United Steelworkers —

Earl Warren:

No, no, I — I want the certification to be to the national as it is here.

James J. Davis:

Well, all right, but if I may say with all respect you want everything your way [Laughs] and that’s — that’s right.

Earl Warren:

That’s (Voice Overlap) —

James J. Davis:

That — that’s right.

That’s — that’s right.

That’s all right, sir.

But it arises both ways.

I would say yes, that no matter what may be the internal arrangement of a union, no matter what it may be, if this is a subject which is in fact a term or condition of employment or so closely affects terms and conditions of employment as to be practically apart there of it to lift the old test of this Court in FELA cases in the — from the old Peterson case.

Then, I say that it is bargainable without regard to the internal organization of the union provided both parties are in good faith and that if the unions internal arrangement precludes it from bargaining about what are in fact terms and conditions of employment it must get its internal arrangements in order.

Now, the — the strike clause — my time is about expired.

The strike clause was lifted in this case from a UAW contract.

The UAW bargained this clause up with the Allis-Chalmers Chalmers Company and included it in contract.

They have it in several.

James J. Davis:

For our purposes, we think that the fact that they bargained about, that they have accepted it in their contract indicates that they think that it affects terms and conditions of employment or is so closely connected therewith as to affect terms and conditions of employment.It has been a subject of bargaining.

Now, by this — it was all in my brief, my basic objection to the Board position herein that they have applied a mechanical per se artificial test to determine the activity of the parties and to limit the bargaining area and that the statute does no such thing that the purpose and intent of the statute is to leave the parties free, to explore, to expand, if possible their areas of agreement.

And so long as they are in good faith and the subjects with which they are discussing are either terms and conditions of employment or relate thereto or are so closely connected as to be reasonably deemed to affect terms and conditions of employment and the very fact that they talk about them is certainly strong evidence that they do or that they strike about them.

That then, I think they are bargainable and I think that recognition and it should be — I — I think this Court has an opportunity here to clarify this issue to get the gloss off of this, to get down to fundamentals that recognition provided we are in good faith consists of meeting and conferring exclusively with the agent and with none other.

And that once that is clarified, that we are then down to the freedom of both sides to explore these questions if they do have a — are likely to have an affect or likely to affect terms and conditions of the party.

Felix Frankfurter:

Mr. Davis.

James J. Davis:

Yes, sir.

Felix Frankfurter:

You didn’t, as I understand it, to say, you are prepared to have the International via signatory powers to this agreement, but in everybody’s interest and incidentally it is, but you didn’t take the position that while you are ready to have the International to formally certified agents sign the agreement in the interest of — of fixing or enhancing responsibility in the part of the people who really have to work with the agreement, you also want the local names attached to the agreement because that will further the purpose of the agreement.

That was not your insistence at the bargaining table, wasn’t it?

Your insistence was that the International be excluded.

James J. Davis:

No, sir.

My insistence at the bargaining table was that the local sign the contract or that the contract be signed in the name of the local, that the — I conceive of the union as an entity.

And there — the — although the International and the local maybe separate labor organizations under the statute, they are not separate entities, it’s a single entity.

I — we insisted that the local sign the contract as a shortcut to imposing responsibility primarily upon the local.

We never objected to the International approving the contract before it was signed —

Felix Frankfurter:

But you didn’t want them to be a signatory to the contract, is that right?

James J. Davis:

The International?

Felix Frankfurter:

Yes.

James J. Davis:

Not as a party, as approving it, as controlling its terms, as anything else.

But the only reason we wanted the local to sign it was to fix the responsibility primarily —

Felix Frankfurter:

I will —

James J. Davis:

— there.

Felix Frankfurter:

— repeat my question.

Your position was not — it’s all right with us if that’s your scheme of things to have the International sign it.

Go and sign it also, sign it, but we also want the signature of the local because that will have potency in fixing the responsibility upon the people in Wooster.

James J. Davis:

In fairness.

Felix Frankfurter:

You didn’t do that, basically.

James J. Davis:

Yes, sir, Your Honor, we did but it — with — with the reverse twist.

In fairness, we insisted that the local sign the contract as the party, that the party be identified in its local name and we’re perfectly willing and express the willingness that the — before so doing, the contract should be approved and approved with the signature for approval, but not as the primary responsible party by the International.

That is — that was our position at the bargaining table.

Felix Frankfurter:

You did not as — that it be a (Inaudible) as I can be.

The contract is an arrangement between people.

You did not want the International to be one of the persons who will — was on one side, one of the parties of such an arrangement, is that right?

James J. Davis:

Mr. Justice —

Felix Frankfurter:

I’m not — I’m —

James J. Davis:

No, I’m not trying to evade you.

Felix Frankfurter:

These are either or either words or not the words.

James J. Davis:

I’m not trying to —

Felix Frankfurter:

If they are words, then I don’t see what your insistence amongst it.

If they’re not the words, then we’ve got to go to the significant division.

James J. Davis:

Well, they are not words.

They are not words.

We conceive the — the International and the — and the local —

Felix Frankfurter:

But one.

James J. Davis:

— not as separate — not as separate entities but as one.

Felix Frankfurter:

Well, so then they — the basis of —

James J. Davis:

And —

Felix Frankfurter:

— one is the International.

James J. Davis:

And we asked that they sign in the name of the local for the purpose of placing the emphasis there.

That’s —

Earl Warren:

Mr. Manoli.

Dominick L. Manoli:

I should like briefly to comment on two things.

Mr. Davis has indicated this union has bargained and accepted the strike clause such as we have in this contrary, as we have here.

He mentioned particularly the Allis-Chalmers contract that this union has with our company.

I think that in passing, I should mention that the union filed charges against the company in that case in — on the basis of the company’s insistence upon that provision.

That matter was litigated to the Board, to the — and to the Seventh Circuit.

And of course, the Seventh Circuit ruled against us as — as the Court may know.

Now, coming back to the question of Mr. Justice Frankfurter has put insofar as I’ve been able to discover, if there is any bargaining with respect to who is to be the party named on the contract the bargain has been whether someone in addition to the certified representative should be named.

For example, if the local has this certificate, whether the International should also be named or the International has a certificate whether the local should also be named.

Now, in this connection, I should like to read what the Bureau of National Fares in a study made in 1956, we haven’t cited this in our brief, but I will supply it to the clerk for the Court’s convenience if I may.

Dominick L. Manoli:

And if I may read just one short paragraph, it said in reports that under the Taft Act, the business of writing recognition and related clauses has become largely routine for too many reasons.

First, the union representing a majority of the employers in the appropriate bargaining union must be recognized as the exclusive bargaining agent.

And second, coverage of the contract is fixed to a large degree by the Labor of Board determination of the appropriate bargaining unit.

Now, it seems to me that if these matters become largely routine that it’s not quite accurate to say that these become subject to collective bargaining as to whether or not —

William J. Brennan, Jr.:

Tell me, Mr. Manoli.

There used to be as I recall it a rather detailed analysis of the filed contracts.

I think at least to be filed with the Department of Labor, that still are, aren’t they?

Dominick L. Manoli:

The — yes, the latest study that we were able to obtain other than this statement was the one that I referred to yesterday and made by —

William J. Brennan, Jr.:

Well, has any — any specific analysis been made of comparing — by comparing certifications with the signatory to the contract from —

Dominick L. Manoli:

We — we checked that specifically, Your Honor.

I checked that in preparation for this argument.

I wasn’t able to find anything like that over there.

William J. Brennan, Jr.:

Is not anything.

Dominick L. Manoli:

That’s right.

Apparently, it’s not been a problem that they have been of such a character that they should have — that they would take cognizance of.

Felix Frankfurter:

May I ask you?

Are you finished?

Dominick L. Manoli:

Yes, sir.

Felix Frankfurter:

May I ask you, and this is a hypothetical case, if you could shed some light, to go — the insistence was in the form in which I have put it to Mr. Davis (Inaudible) argument namely that the — the company, there’s an atmosphere cycle — psychological consideration, prestige, etcetera, etcetera.

Those pressures are really a desirable thing in maintaining this relation and so on.

And to that end, it helps in our opinion that the local also put its name down on this piece of paper.

Would that be within the bargaining?

Would that be allowable?

Would you be here if that was the case?

Dominick L. Manoli:

Under the Board’s theory, if the — the Board here in effect said — let me answer it this way.

Here, the International proposed that the contract should be with the International and the local as a co-party.

The company recognizes that while the union could make that proposal that the employer could have refused to pull up — the local — the local on the contract since it was not the certified party.

And so here, if the employer had insisted on having the local and the International as co-parties with the contract, the union could have agreed to that or it could have opposed.It could have opposed under argued the — making the local which was not the certified union a party to the contract.

Felix Frankfurter:

Well, but if they — if they had opposed and the employer insisted, would you be here?And said, all right we — this is our sticking point.

Would that —

Dominick L. Manoli:

If they — no, we wouldn’t be here.

We wouldn’t be here unless the employer filed charges against the union.

Felix Frankfurter:

But I’m not on the other way around.

Dominick L. Manoli:

(Inaudible) from the bargaining.

Felix Frankfurter:

No, the other way around.

Would you be here charging them with (Inaudible) to enter to bargain?

Dominick L. Manoli:

No, we would not.

Earl Warren:

Very well.