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

PETITIONER:National Labor Relations Board
RESPONDENT:Wooster Division of Borg-Warner Corporation
LOCATION:Hazlehurst Manufacturing Company

DOCKET NO.: 53
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 356 US 342 (1958)
ARGUED: Nov 20, 1957 / Nov 21, 1957
DECIDED: May 05, 1958

Facts of the case

Question

  • Oral Argument – November 21, 1957
  • Audio Transcription for Oral Argument – November 21, 1957 in 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

    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, Petitioner, versus National Labor Relations Board.

    Mr. Manoli.

    Dominick L. Manoli:

    May it please the Court.

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

    It presents two questions.

    The first of these is whether under the National Labor Relations Act, an employer may insist as a condition of a collective-bargaining agreement that the bargaining representative agree not to call a strike over any dispute which the parties aren’t able to settle through negotiations including the termination or modification of the collective-bargaining agreement until all of the employees in the bargaining unit have had an opportunity to vote on whether to accept or reject the company’s last offer.

    The second question presented in this case is whether under the Act, an employer may insist that the collective-bargaining agreement be between the company, the employer, the employer and the Local and the International rather than the International which the Board has certified as the employees’ bargaining representative.

    In other words, the question here is whether a bargaining representative under our statute is required to bargain about proposals of this character.

    For convenience, I would like to refer these — to these two proposals as the ballot clause.

    This is so-called strike vote clause and the other one as the recognition clause.

    Briefly, the Board held that the employer’s insistence upon these two clauses, as a condition of the collective-bargaining agreement, violated the bargaining requirements of the statute.

    The court below, on the other hand, while agreeing with the Board with respect to the recognition clause that the employer’s insistence upon having this contract solely with the Local rather than the International which you can certify, did violate the bargaining requirements of the statute, disagreed with the Board with respect to the ballot clause and held that it was permissible for the employer to insist upon the ballot clause.

    The facts which give rise to these two questions that are before us are not in dispute and I shall summarize them quite briefly.

    In 1952, following the election among the company’s employees, the Board certified as their bargaining representative the International Union United Automobile Workers.

    Shortly after the International was certified, it chartered a local which admitted to membership employees of a company at this particular plant.

    Shortly after the Local had been charted and the representatives of the International, the Local, and the company, beginning in 1953, entered into negotiations for the purpose of consummating a collective-bargaining agreement.

    These negotiations continued for a period of several months and finally culminated in an unsuccessful strike.

    At the end of the unsuccessful strike the Local — the Local but not the International, the Local accepted the company’s terms including the two clauses that I’ve mentioned and the men, of course, returned to work.

    Now, going back to the negotiations and what took place there at the beginning of the negotiations, the International proposed a contract which would be between the company, on the one hand, and the International and it’s Local as co-parties.

    The International also proposed to the company a “no-strike” clause with respect to matters which would be the subject matter of arbitration under its proposed contract.

    The company, on the other hand, proposed a contract which named only the Local of the International as the party to the contract.

    More specifically, the company’s proposal, which designating the union as the party to the contract designated as “Local 1238 affiliated with International Union, United Automobile Workers”.

    The company also proposed that in case of a dispute between the parties which they were unable to resolve through negotiation that the union would not call a strike until the company’s last offer had been submitted to the — to the employees for them to vote as whether to accept or reject the company’s last offer.

    In the event that the majority of the employees rejected the company’s offer, then the company was to have a — an opportunity of submitting a further proposal within 72 hours and the employees were again to be given an opportunity, all of the employees in the unit, both non — both members of the union as well as nonmembers.

    All of them will have a further opportunity to vote on whether to accept or reject the company’s proposals.

    The company explained these two proposals in this fashion.

    It — it explained this — the so-called recognition clause that the contract should be with the Local rather than certified International on the ground that the Local was more familiar with the local plant conditions and that therefore it should have the right to have its own contract.

    It explained the strike ballot clause on two grounds.

    First of all, that it would enable it to have a better understanding of what the employees wanted and that it would permit the company to reexamine if necessary its position in the light of their wishes.

    Dominick L. Manoli:

    And secondly, that it was designed to prevent — I think to where they put was a — a well disciplined minority from stacking union meetings and calling unwanted strikes.

    The — in the negotiations which follow, I might say the union rejected both proposals.

    In the negotiations which followed, the company continued to insist upon these two clauses.

    It made a slight modification in the so-called recognition clause and to change the recognition clause so that — that the union would be designated as Local 1238 of International Union, United Automobile Workers instead of Local 1238 affiliated with.

    But the change, nevertheless, continued to reflect the company’s stated purpose that the contract should be with the Local rather than the International which the Board had certified.

    The company also modified somewhat it’s — the ballot clause so that to — in — so that, and perhaps I omitted this, that the original ballot proposal as proposed by the company further provided that the contract was not to be terminated until after the employees are also — have a vote — to vote upon that matter.

    In its final revision of this proposal the company included the question of — of amendment and or modification of the contract as well as its termination.

    In other words, before the contract could be — if there dispute as to the terminating or modifying the contract the company’s final proposal or it would have to be submitted to the employees for a vote as to whether they accept or reject.

    The — throughout the negotiations the company made it clear that agreement was contingent upon the union’s acceptance of these clauses, these so-called ballot and recognition clauses.

    The union for it part resisted these two proposals, informed the company that agreement would not be possible as long as this company insisted on either one of them, inferred that the employees were prepared to strike over either one of these proposals.

    The company and the union were also — and lowered their heads on other matters and as a consequence a strike was called and the strike, as I’ve indicated, was unsuccessful and at the conclusion for the strike the Local, but not the International, accepted the company’s terms including the so-called ballot and recognition clauses.

    The International did not — was not a party to the final agreement which was signed between the company and the Local.

    Now, as I’ve indicated, briefly, few minutes ago, the board held that the company’s insistence upon these two clauses as a condition of the collective-bargaining agreement violated the bargaining requirements of the statute.

    More specifically, the Board held that these two clauses affect the bargaining representative’s status as the exclusive representative of all the employees that this status does relate to terms or conditions of employment.

    And that, therefore, the union was not required to bargain with respect to these — to these matters and that the company by insisting upon bargaining, by insisting upon these two clauses as a condition of the collective-bargaining agreement, in effect, was refusing to accord to the union the full and exclusive recognition which — to which it is entitled to, to which it is entitled under the statute.

    Tom C. Clark:

    You mean demand an unfair labor practice?

    Dominick L. Manoli:

    Yes sir.

    The company’s insistence upon these two clauses was an unfair labor practice.

    The court below, to explain it a little more fully its position, as I’ve said before, accepted part of the Board’s case but rejected the other.

    They accepted the Board’s position that insofar as the company here was insistent of this contract to be with the Local rather than the International which I say the Board had certified, that the company had engaged in unfair labor practice.

    And courts agreed with us, that the union status as the exclusive bargaining representative entitled it to be a party to the contract and that the company’s insistence upon excluding it from the contract from being a party to the contract, in effect, was tantamount to a failure to give it —

    William J. Brennan, Jr.:

    So, to that — that’s all derived exclusively from the form of the certification.

    Dominick L. Manoli:

    From the statute and the certification.

    William J. Brennan, Jr.:

    Yes, but it was derived actually from the certification, is it?

    Dominick L. Manoli:

    Yes.

    William J. Brennan, Jr.:

    I understand the International was certified following the election.

    Dominick L. Manoli:

    Right.

    William J. Brennan, Jr.:

    And the insistence of the company upon a contract with someone not the International was what was held to be the unfair labor practice.

    Dominick L. Manoli:

    That’s correct, that’s correct.

    Felix Frankfurter:

    It — it isn’t relevant, I don’t think it is, but if these were problems — but you said to exclude.

    Felix Frankfurter:

    Does that mean would the Local be also a party to the contract?

    Dominick L. Manoli:

    Under the company’s proposal only the Local would be a party.

    Felix Frankfurter:

    I understand that —

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    — I mean — if — would it all — with the — with the Local — tell me, in the first place, what is — if there be common factors, a local joined the collective agreements where the International is certified.

    Dominick L. Manoli:

    Your Honor, I have searched for material on that and the latest study that I have been able to obtain was made sometime in 1941.

    And that study indicates that the — the practice then was for contracts to be entered into both parties, the International and the locals as co-parties.

    Felix Frankfurter:

    Well that was the old — that was the little knowledge (Inaudible) around my head.

    I thought that used to be so.

    Dominick L. Manoli:

    That’s right.

    Now, the union as I indicated here made that proposal here that the Local be included as a co-party but the company’s proposal was to exclude the International and have only the Local as —

    Felix Frankfurter:

    What — what —

    Dominick L. Manoli:

    — co-party.

    Felix Frankfurter:

    — what are the industrial considerations for inclusion not exclusion to the International but inclusion to the Local?

    Dominick L. Manoli:

    Inclusion of the Local?

    Well, I suppose that they do have some interest in — in the contract which is made and it gives the Local with some standing, some standing.

    Now, usually the — where you have a local which is certified, the problem is whether or not the International should go on because the employees are insistent the International presumably a more responsible party should be a party to the contract.

    And on the other hand, where you have an International which has been certified, seems — seemingly the practice is for the unions to propose that the Local also be made parties to the contract and it gives them some kind of standing in prestige.

    Felix Frankfurter:

    This is the matter that here for us, but this does involve the whole problem of delegation and autonomy of locals and responsibility of federal isn’t it?

    I mean, in the union as between Local and International, problems are not solved, are they?

    Dominick L. Manoli:

    No, they’re not.

    No, no they’re not [Laughs]

    William J. Brennan, Jr.:

    Well isn’t it — isn’t’ it now pretty much a practice, Mr. Manoli, that the International where it has the certification wants the contract for internal administrative reason within the union itself?

    Dominick L. Manoli:

    That the International be a party?

    William J. Brennan, Jr.:

    Wants to be the party —

    Dominick L. Manoli:

    The party —

    William J. Brennan, Jr.:

    — to the contract —

    Dominick L. Manoli:

    — (Voice Overlap)

    William J. Brennan, Jr.:

    — where it has the certification, doesn’t it?

    Dominick L. Manoli:

    The — this particular International, for example, well, always goes on the contract.

    Dominick L. Manoli:

    It will — when — when there has been a — when there has been Local which is in the picture it may propose that the Local come into the — come in — come in on the contract but it never relinquishes.

    This International —

    William J. Brennan, Jr.:

    Well, there are matters of internal union administration which you account for that aren’t there?

    Dominick L. Manoli:

    Yes, there are because in this fashion the International gets control over the contract and how it’s administered whereas, otherwise, it might very well lose control of that.

    Felix Frankfurter:

    But what’s goes right?

    Dominick L. Manoli:

    No.

    Felix Frankfurter:

    As you’ve indicated an International I shan’t name but you and I could name several, exercises responsibility over the Local about contract.

    There’s another problem of the Local not being dragged into strikes exactly.

    Or, I withdraw the word drag and having an interest in determining whether or not there should be a strike.

    I’m not now considering the question of whether the discourse and namely, where the International is dissatisfied and what the implications of such certifications are derivable from the act.

    I’m not talking about that.

    I’m talking about why the issues of — of Labor Union responsibility and strategy and the rest.

    I think that’s in the related problems as to the Local and International.

    Dominick L. Manoli:

    Yes, I — I think so.

    The — coming now to statement of our reasons here for, I think that the court was — the court below was wrong in — in one aspect of this case and right on the other as had — it probably did not indicate.

    We are here complaining about the court’s ruling with respect to the ballot clause.

    But we — the other side is complaining with respect to the court’s ruling as to the recognition clause.

    We won, in other words, on the recognition clause and laws under ballot clause.

    I suppose analysis of the two questions which confront us here begins with a brief restatement of the collective bargaining principle which the statute has defined and is further explicated by the decisions of this Court.

    The statute provides that the exclusive bargaining representative — that the bargaining representative, designator selected by a majority of the employees in a particular bargaining unit shall be the exclusive representative of all the employees in the unit for purposes of collective bargaining with respect to rates and hours of pay and other terms and conditions of employment.

    The — the central concept of the statute in this respect, is, that the bargaining representative speaks for all of the employees in the unit.

    And that provided that it deals fairly with the interest of all of them that it has the authority to enter into binding and final commitments on their behalf.

    The authority of the bargaining representative to speak for and bind all of the employees in the unit may perhaps, without pushing the analogy too far, may be compared to the powers which are vested in a legislative body.

    For as this Court had said, Congress has seen fit to uphold the bargaining representative with powers comparable to a legislative body both to create and restrict the rights of those whom it represents.

    It is for the bargaining representative, under this scheme — under this scheme, which Congress has set forth in this statute.

    It is for the bargaining representative to formulate demands, to accept or reject what the company — what the employer proposes.

    In a word control of the employee side of the bargaining table is lodged in the bargaining representative.

    By the same token, the employer is under a duty, as decisions of this Court have made quite plain, he’s under a duty to accord to the bargaining representative full and exclusive recognition to recognize the bargaining representative has full and exclusive control of the employee side of the bargaining table and finally that the employer may not deal directly with the employees.

    Now, how does the recognition clause or rather, how does the ballot clause fit into this statutory scheme?

    The ballot clause in affect provides for a referendum by the employees to register their approval or disapproval of their representative decision at the bargaining table and to register their approval or disapproval with the respect to determination or the modification of the agreement.

    Dominick L. Manoli:

    Now, we believe that the company’s insistence upon a clause of this character, upon a referendum of this kind, involves a diminution of the bargaining representative part, exclusive part to deal with the employer on matters of collective bargaining.

    And further that it represents an intrusion into the internal affairs of the bargaining representative and that the employer may not insist upon bargaining about these matters and that union is not compelled to bargaining about it.

    Now, in the first place, we think that a clause of this kind, that a ballot proposal of this kind permits the employer in a very real, in a very practical sense, to deal directly with the employees himself.

    By the same token it permits the employees to deal with the employer directly rather than as the statute contemplates and requires through their bargaining representative.

    The very proposal itself, I think, indicates that the employer is — is seeking to bargain with the employees directly.

    He would make one offer.

    If that offer was rejected then he would make a further offer for the employees to vote.

    And the fact that this kind of a ballot device enables the employer to deal directly with the employees on matters of collective bargaining, is, I think, emphasized by the company’s own explanation as to what this clause was intended to do.

    Earl Warren:

    Mr. Manoli may I interrupt just a moment to ask you —

    Dominick L. Manoli:

    Yes.

    Earl Warren:

    — how many times he could insist on a matter being submitted to ballot that it would be once or twice — twice.

    Did I understand you?

    Dominick L. Manoli:

    The contract says twice and then it doesn’t make any further provision as to whether there could be a third or not.

    It’s simply — the contract simply provides that he could make the first offer.

    If that was rejected by a majority of the employees, then within 72 hours, the company would have the opportunity to present a further proposal and the employers would vote and beyond that the contract says nothing.

    Have I answered your question, sir?

    Earl Warren:

    Yes.

    Felix Frankfurter:

    Before you go on, I want to be clear.

    Your contention is at Section 15 is an unfair labor practice.

    Dominick L. Manoli:

    That’s right, sir.

    Felix Frankfurter:

    What I want to know is it because the insistence proved want of good faith or because the proposal itself undermined or is — is antagonistic to the Act.

    It isn’t — you don’t go on ground that it — it shows the ones that —

    Dominick L. Manoli:

    We do not, Your Honor.

    Felix Frankfurter:

    All right.

    Dominick L. Manoli:

    We do not.

    Felix Frankfurter:

    Now, what — what does it?

    Dominick L. Manoli:

    As a matter of fact the Board has recognized that it may be quite lawful for the employer to propose of contract — an agreement of this sort and it may be lawful for the — for the union to accept it.

    But where it becomes bad is when the employer, in the face of the union’s opposition, on the face of representative’s opposition that it does not wish to bargain about that, that the employer continues to press with the demand.

    And the reason for that is the Board feels that while the union may have the capacity to waive this — to waive this right to — to be the — to have full and exclusive control over the employee side of it.

    Felix Frankfurter:

    You mean waive this right — meaning something that it gets from the Act?

    Dominick L. Manoli:

    Yes — right.

    That’s right.

    That it under the Act as I’ve sought to indicate the bargaining representative has complete control —

    Felix Frankfurter:

    And that is my thought —

    Dominick L. Manoli:

    — before he sat at the bargaining table.

    And as we see this proposal —

    Felix Frankfurter:

    Well, that part is that vague of a question, doesn’t it?

    Whether complete control includes disallowance of an — of an employer to insist on such a contract.

    Dominick L. Manoli:

    Well —

    Felix Frankfurter:

    When you say he has complete control and this is negative.This had to answer the question?

    Dominick L. Manoli:

    We —

    Felix Frankfurter:

    That’s what we’re here for to see what the answer is.

    Dominick L. Manoli:

    Well I’m just trying to indicate to Your Honor here that this proposal detracts from the control which the statute gives to the bargaining representative over the bargaining negotiation that it detracts from that because it enables the employer to deal directly with the employees himself.

    William J. Brennan, Jr.:

    Suppose, Mr. Manoli, that — I don’t know if I quite follow this.

    You said that the Board has feeling that it may be lawful for the employer to propose and for the bargaining agent to agree to accept such a appellate.

    Dominick L. Manoli:

    That’s right sir.

    William J. Brennan, Jr.:

    Then I’m to concur from that that this is a demand on the part of the employer which the Board believes it’s within the permissible area of collective bargaining?

    Dominick L. Manoli:

    No sir, no sir.

    William J. Brennan, Jr.:

    Well, now, how can it can be lawful for the union or — employer to propose and the union to accept that it’s not within the permissible area collective- bargaining.

    Dominick L. Manoli:

    Let me put this to example, Your Honor.

    A union might propose, for example, propose to the employer that it should bargain about the salary which had been paid to officers.

    Obviously, that’s not within the area of compulsory collective-bargaining as is defined by the statute.

    If the employer wishes to bargain about that is — it’s — is not unlawful for the union to propose it.

    If the employer wishes to bargain about that if — there’s nothing unlawful in its doing so.

    But yet in view of the statutory scheme that there are only certain matters as to which you can be compelled to bargain is that we compel to bargain.

    Once the union or the employer as the case may be and in fact put up a stop sign and says we don’t to discuss this proposal and that proposal does not fall within the area of compulsory collective-bargaining then the one side of the other is not — is one — the union is not required to bargain about it and the employer may not insist upon it.

    William J. Brennan, Jr.:

    Well, then that must mean, I’d take it, your position is that this particular demand is never at any time within the area of permissible collective-bargaining — I don’t mean permissible, I mean compulsory.

    Dominick L. Manoli:

    That’s right I’m —

    William J. Brennan, Jr.:

    — (Voice Overlap)

    Dominick L. Manoli:

    I’m —

    William J. Brennan, Jr.:

    Is that it?

    Dominick L. Manoli:

    Yes, sir.

    William J. Brennan, Jr.:

    That it — there may be another area called permissible —

    Dominick L. Manoli:

    Yes.

    William J. Brennan, Jr.:

    — collective bargaining that we’re not concerned with.

    But, here you say, in any event it’s not within the area of required bargaining.

    Dominick L. Manoli:

    Precisely.

    William J. Brennan, Jr.:

    Is that it?

    Dominick L. Manoli:

    Precisely.

    Felix Frankfurter:

    And I think the — the analogy you gave if I may say so is a little different.

    Plainly enough, the salaries of officers of the corporation are not in matters and just are arranged but the scope of the activity of a union and — and purposely we lack lose language is — is not so confined to define it.

    You can say that isn’t something that isn’t but the effective — but the effective furtherance of the Act.

    I’m not passing judgment on this specific thing.

    Dominick L. Manoli:

    I understand.

    Felix Frankfurter:

    The subject matter is related to the maintenance of these an industrial and industrial good relation.

    I’m not saying its wise or unwise but when you say you go along way when you say that this is something that’s all right if they want to do that because what you’re dealing here with is a subject matter that relates to the exercise of responsibility by a person who has responsibility and that not’s foreign to to the Act.

    Dominick L. Manoli:

    It is, however, Your Honor, if I may jump over conceivable matters (Voice Overlap) —

    Felix Frankfurter:

    But don’t — don’t let me dislodge you —

    Dominick L. Manoli:

    (Voice Overlap)

    Felix Frankfurter:

    — because I’m sure yours is better than my question and —

    Dominick L. Manoli:

    No, no, I would like answer your question briefly at this moment then I’ll try to fill in the steps how I get in there.

    But while it — obviously, it’s not unrelated to the purposes of the statute.

    It does not fall, so we say, within the area of compulsory bargaining as defined by the statute.

    Because the area of compulsory bargaining as defined by the statute relates to terms, rates of pay, hours and other conditions of employment.

    Now, if I may go back, now, as to why we think this is not, why this kind of a demand is not within those — that area of compulsory bargaining.

    Now, as I was saying, that this kind of a proposal permits the employer to deal directly with the employees and I think if that is — that our view of that is practiced by company’s own explanation as to what this proposal — this with the strike proposal was intended to accomplish.

    The principal negotiator for the company is testifying and he says, this is at page 318 of the record.

    “I think that” — about four lines from the top, I’m beginning in a middle of a sentence there.

    “I think that this question of whether or not there should be a strike was really related to whether or not the management was doing a good job of managing the business at least so far as it’s relation with the people were concerned and that he” is, the he is the person of the company who had previously testified.

    “And that he felt pretty much” as he stated in — know — in his own testimony that if a majority of bargaining unit were opposed to the particular proposal that was presented at the moment that management ought to reexamine its own position.

    Dominick L. Manoli:

    If, on the other hand, it developed that a majority of the people were not opposes to management’s action in any particular respect that was a pretty good indication that management was doing a good job.

    Now, I think that the buttresses our view as to what is accomplished by this kind of a device.

    That the employer — it enables the employer to deal directly with the employees and this is contrary to the statutory scheme.

    Beyond this, beyond this, we think that a proposal of this kind compels, the bargaining representative, at least, in part to surrender the exclusive control which the statute confers upon it over the employees’ side of the bargaining table.

    Our device to this kind introduces an element of competition if I may say so and it lodges in a very real sense, it lodges in a very real sense.

    A veto power in a group of employees whether they be the minority or they be union members or nonunion members who can muster a current majority against the representative and outvote it or vote to override it on a particular issue.

    How common is the version to this kind in a collective-bargaining agreement?

    Dominick L. Manoli:

    A study made in 1953, Your Honor, out of 400 contracts, 5% of these contracts were found to have a provision with — with respect to the strike of these.

    Of those — of that 5%, 2% of the study goes on to say, 2% reflected the — or restated the union’s own practice with respect to holding of — of vote therein before going out on a strike.

    Felix Frankfurter:

    Now, on the 5% the union in their own arrangement.

    Dominick L. Manoli:

    That’s right.

    Felix Frankfurter:

    Now, may I ask you the provision for a cooling period.

    Dominick L. Manoli:

    The — the Section?

    Felix Frankfurter:

    What?

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    In the — in the contract, the insistence by (Inaudible) some provision that before the executive of the union calls a strike.

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    To effect some cooling here.

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    Those are not uncommon, are they?

    Dominick L. Manoli:

    No, sir.

    No sir.

    Felix Frankfurter:

    They’re all right?

    Dominick L. Manoli:

    Well, the statute, of course, provides for a cooling off period of a certain amount of time.

    Felix Frankfurter:

    Yes.

    Dominick L. Manoli:

    For certain —

    Felix Frankfurter:

    But I mean —

    Dominick L. Manoli:

    — amount of time

    Felix Frankfurter:

    — in going beyond the statute —

    Dominick L. Manoli:

    And —

    Felix Frankfurter:

    — with the provision of the court.

    Dominick L. Manoli:

    I —

    Felix Frankfurter:

    Or —

    Dominick L. Manoli:

    Yes, yes they would be.

    Yes, they would be because — because that kind of a clause, Your Honor, does not — does not in anyway.

    Felix Frankfurter:

    And this should be the argument because I’m just trying this to be a fascinating and difficult problem.

    Dominick L. Manoli:

    Yes, I think that their — I hope my judgment would be — that it would be all right to have a cooling off period or an employer to insist upon a cooling off period beyond wherever the statutory (Voice Overlap) —

    Felix Frankfurter:

    In this question —

    Dominick L. Manoli:

    — defined.

    Felix Frankfurter:

    — I don’t know as I’m looking at your brief.

    This problem reminds me of a good deal of controversy — judicial decisions of the five-year opinions of (Inaudible) whether the referendum if into provisions of state constitution.

    The legislative power shall be vested in legislation.

    And that has been the subject of a diversity of opinion on the courts whether — since the legislative power vested the legislature.

    Can you get the advisory referenda and so on?

    Dominick L. Manoli:

    Yes.

    Yes sir.

    Felix Frankfurter:

    And it raises comparable problems of — of the exercise of power, the responsibility for which lies in the designated agent.

    Dominick L. Manoli:

    Well we —

    Felix Frankfurter:

    What referred advisory, would it make a difference?

    Dominick L. Manoli:

    What in a sense, Your Honor?

    Perhaps I haven’t made myself clear that the union was not compelled to respect the vote as a matter of contract.

    In other words, under the contract the union presumably was free even after a majority had voted to accept the company’s proposal was still free to call a strike.

    But I don’t think that we should be under any illusions about the practical — what — what become — what the parties really intended and thought that this was going to accomplished.

    I think it was understood by them, even though I can’t point anything in the record.

    It definitely says so and I think it’s fair to — to assume that it was understood by them that a vote would be decisive on this matter.

    And as a matter of practical — as a matter of industrial realities, it would be very difficult for a union to call a strike.

    William J. Brennan, Jr.:

    Well, at any if at all —

    Dominick L. Manoli:

    In the face of an adverse vote.

    William J. Brennan, Jr.:

    At all of events, I suppose the implication of Mr. Adams testimony is that management would feel either strengthened or weakened and the position that we’re taking at the bargaining table depends upon the outcome of that referendum, is that it?

    And if —

    Dominick L. Manoli:

    Yes.

    William J. Brennan, Jr.:

    — if the referendum was favorable to the companies offer.

    Dominick L. Manoli:

    It would stand on its offer.

    William J. Brennan, Jr.:

    It would stand on it.

    Dominick L. Manoli:

    And in effect, the employers would have made the decision rather than the bargaining representative.

    Felix Frankfurter:

    In short there are limitations of the democratic process in the conduct of the union.

    I don’t mean to be frivolous about it but that’s — that’s involved, isn’t it?

    Dominick L. Manoli:

    Yes, it is.

    That’s where the statute is — is working may be good, may be bad but it has to be a mandate.

    I think it’s a legislative problem.

    Felix Frankfurter:

    That’s implication to draw from the statute.

    Dominick L. Manoli:

    Yes.

    William J. Brennan, Jr.:

    Wasn’t this time — wasn’t this some legislative proposal along the line of the appellate court?

    Dominick L. Manoli:

    In — when the Taft-Hartley Amendments were be considered Your Honor, the House Bill proposed that there should be a vote by the employees on the company’s last offer before going out on strike.

    Those proposals were rejected.

    They never found their way into this — into our statute.

    Now, there are two other sections of the Labor Management Relations Act that do deal with the strike votes.

    One is in connection with the conciliation service 203 I believe.

    It is Section 203 of the Labor Management Relations Act which permits the conciliation service to suggest to parties who are involved in some kind of a dispute to have a voluntary — to accept or to adapt voluntarily this — this vote — strike vote matter and then also there’s a further provision in connection with the — with strikes involving the National Health and Welfare which permit the Government to get an 80-day injunction at the — on the 60th day of that injunction, there was requirement that a — both shall be taken of the employees on the company’s last offer.

    But with respect to our statute, there was a provision as I say in the House Bill in 1947 which would have made it mandatory to hold such a vote by the employees on the company’s last offer and that was not done.

    Earl Warren:

    Was it proposed that that be listed as one of the compulsory bargaining issues?

    Dominick L. Manoli:

    I think it was a separate section, Your Honor, that dealt with this in connection with the duty to bargain and there was a separate section of this spelling out in detail all the various steps until they finally they had to do this.

    Felix Frankfurter:

    And now, it wasn’t for the specific — as a — as is intended to be a requirement.

    Dominick L. Manoli:

    Precisely.

    Felix Frankfurter:

    Yes.

    Dominick L. Manoli:

    Precisely.

    Now, as I would say — I was saying a moment ago, this is sort of a vote introduces an element of competition you might say between the bargaining representative and whatever group of employee and the employees.

    And that it lodges a veto power in the group of employees whether they be union or nonunion if they can muster a majority against union on that particular proposition.

    And then the effect of this is — the effect of this is.

    Now, a vote by the employees on these circumstances would not be a mere gallop hole.

    Dominick L. Manoli:

    The union could hardly insist upon its position vis-a-vis the employer.

    Once there had been an adverse vote against its position in a vote of this — in vote of his character.

    So that in sum, in essence what this proposal does is shift control of the bargaining from the bargaining representative as required conferred by the statute from the bargaining representative to whatever group of employee can have — can muster majority.

    They muster majority against the bargaining representative position on that particular dispute.

    The handle which a valid device of this kind furnished to an employer for supporting the differences between the employees and the bargaining representative and in pairing the effectiveness of the bargaining representative at the bargaining table, if I’m — I think suggested by the facts of this case.

    In this case, the International won the election by a very narrow margin out of some 90 odd votes the International here received some 48 votes as against 45 votes for a rival, for rival union.

    In other words, International here won by three votes.

    I think it is not unfair to suggest that here is potentially at least a hardcore of opposition to the bargaining representative.

    A mere shift of a few votes, you could be — can muster a majority against the union.

    It seems to us that this — this case, this case demonstrates the possibilities for exploitation that it enables — that — that it followed device of this kind permits an employer to — to engage in.

    In essence what we’re — what I’m trying to say is that we think that the company’s insistence upon these — this clause, the recognition clause in effect was tantamount that towards an insistence that the bargaining representative weigh, weigh the powers which it has under this statute, namely, it’s the exclusive control over the employee side of the bargaining table.

    Now, if we are right in that.

    If we are right in the analysis that that is what the ballot clause accomplishes that is an insistence upon a waiver of the union’s right to have exclusive control of the employees side of bargaining table then we think and I can now come to your question, Mr. Justice Frankfurter.

    Then we think that this is not a matter as to which the company can insist that the union bargain.

    The statute defines as an area — as the area of compulsory bargaining or let me put at this.

    The area which the statute defines is the subject to compulsory bargaining relates to hours, rates of pay and other terms and conditions of employment.

    With respect to those matters, either side may propose, and as long as it is acting in good faith, stick to its proposal doesn’t have to concede.

    That, I think, is the teaching of this — of this Court’s decision in the American National.

    And while I’m in American National, I do want to say if he words here on that — about that case because it’s quite so important a part in the adverse decisions that we’ve had on this problem.

    Now, of course, it plays a very important role in the company’s brief.

    We think that American National is distinguishable from this case.

    In the American National, the Court will recall the employer was insistent that the contract included a so called management — management functions prerogative or something, something of that sort whereby — whereby the employer alone would handle matters relating to discipline, production — scheduled productions and promotions.

    The union, on the other hand, insisted it would — whenever there was a dispute as to these matters, it should be submitted to arbitration.

    Now, this Court — the majority of this Court held that the employer as long as he was acting in good faith could insist upon those — upon its proposal with respect to the handling of these matters.

    As this Court solved the case, there’s the majority this Court solved the cases.

    These basic items as to which there was a dispute namely, the scheduling of production, promotions, disciplinary matters.

    They related to terms and conditions of employment and that therefore the employer as long as he was acting in good faith could insist upon those demands.

    Here, however, though, we do not have a matter that relates to terms and conditions of employment.

    What we do have is a matter that relates to the union’s status as the exclusive bargaining representative of the employees.

    The union achieves this status as a matter of right once it has won an election.

    Dominick L. Manoli:

    And the — it’s — it’s status — it is not a negotiable item under the statute.

    The employer doesn’t have the option of saying, I will bargain with you as to whether I will give you the full and exclusive recognition which the statute says you’re entitled to as to matter of right.

    If that were so, it would mean that the union, the bargaining representative would have to defend at the bargaining table what’s its victory could pose and the statute has assured that it is a matter of right.

    Let me turn now to the arguments on the other side on this proposition.

    The company argues first, that there’s really no question of recognition involved in this case.

    And their argument, therefore, falls.

    That what they have here is something in the nature of a qualified “no-strike” clause.

    And that since a “no-strike” clause is a subject matter of collective bargaining, there’s no phases upon which to distinguish since that situation and this situation.

    There is a surface — a certain amount surface plausibility of this argument, indeed enough I guess to have appealed through two courts, the Seventh and the Sixth Circuit Court of Appeals because they’ve adopted this — this approach.

    Despite the surface appeal, if I may say so, we think that the argument overlooks decisive differences between the “no-strike” clause and the clause which we have here.

    The employees entrust to their bargaining representative the exercise of their right to strike.

    They authorize the bargaining representative to either retain that — that right or to wait as a quid pro quo for concessions on the part of the employer.

    A concession of this kind by the union, by the representative involves no diminution you might say of its status.

    But here though, on our analysis that any rate, upon our analysis, the ballot clause in effect calls upon the union to surrender the very power of decision which the statute confers upon it with respect to collective-bargaining matters.

    Felix Frankfurter:

    Let me look at — I have a little bit (Inaudible)

    Dominick L. Manoli:

    Yes, sir.

    Felix Frankfurter:

    What would you say to the Court an insistence on a clause that the bargaining representative should be — should refer back to the union membership whether there should be a bargaining clause right there.

    Dominick L. Manoli:

    I think that whether it’s the — are you making a distinction, Your Honor, between union membership and nonunion membership.

    Felix Frankfurter:

    No, no, no, I didn’t mean that.

    Dominick L. Manoli:

    No, no.

    Felix Frankfurter:

    This —

    Dominick L. Manoli:

    This —

    Felix Frankfurter:

    — should be operative.

    Dominick L. Manoli:

    Yes.

    Felix Frankfurter:

    This is an — this is an insistence on a — on a clause that would come into operation.

    But I’m suggesting a proposal to violate a bargain to refer back to the — to the membership to that — to the principles of the — of the agency whether they should waive their right to decide for themselves and not to go back to make a decision of it.

    Dominick L. Manoli:

    I think our answer would be the same there.

    Felix Frankfurter:

    Same.

    Dominick L. Manoli:

    That’s right, Your Honor.

    It would be the same.

    Dominick L. Manoli:

    The further argument which the company has made, and I’ve already touched upon it briefly, in answer to Mr. Justice Brennan’s question and that is that there is a internal inconsistency in the Board’s position, namely, the Board recognizes that it’s lawful for the employer to make a proposal of this kind.

    That it’s lawful for the bargaining represented to accept it.

    But the company says despite this recognition by the Board as to the lawfulness of the proposal and lawfulness of acceptance, nevertheless, the Board goes on to say that the employer can’t insist upon this kind of a proposal as a condition of the collective-bargaining agreement.

    Well, Your Honor as I said a moment ago, a union may not like capacity to waive some right that it has under the statute.

    But I submit that the option is — the option that the — that waiver is the option of a bargaining representative and not of that of the employer because if the employer could do this, it would mean — it would mean that in — in essence that the employer has the option of bargaining as to whether or not he will give the bargaining representative the kind of recognition that is entitled to under the statute.

    Let me go on now to the second question.

    Let me go on now to the second question which is presented by this case.

    And that is, whether the company could insist that the collective-bargaining agreement be with the Local, rather than the International which the Board has certified as the employer’s exclusive representative.

    As I have previously stated, the Board certified the International after an election among the company’s employees and the International charted the Local after the International itself had been certified.

    The union proposed originally that the contract that they were the company on the one hand and the International and the Local as co-parties.

    The company on the other hand, insisted that the contract be with the Local, rather than the International.

    The company seeks to defend its proposal in this respect that on the ground that the clause which it proposed, the so-called recognition clause, that it proposed was a mere identification clause.

    If that is all it was, it seems rather odd, that it should have proved to be such a stumbling block in these negotiations.

    William J. Brennan, Jr.:

    (Inaudible)

    Dominick L. Manoli:

    The certificate, Your Honor, is at page 33 of the — 33 of the record.

    And the certificate certified that a majority — towards the — five to six lines from the bottom, Mr. Justice Brennan.

    (Inaudible)

    Dominick L. Manoli:

    The International Union, United Automobile and so forth.

    And in this connection, Your Honor will — which Your Honors will take a look at page 390 of the record 390, 390 of the record.

    That shows the first proposal which was made by the company and about — so this agreement is they entered into between the company and Local Union 1239 affiliated with the International Union, United Automobile et cetera.

    And then its kind of second and its final proposal which the Local —

    (Inaudible)

    Dominick L. Manoli:

    Pardon me?

    The proposal (Inaudible)

    Dominick L. Manoli:

    Yes sir that’s right.

    That’s right.

    And then in its second and final proposal which the Local as I say accepted after the unsuccessful strike and this appears — the so-called recognition clause, if may refer to it, is that it appears at page 401 of the record.

    That the only change that was made there was that instead of reading Local Union 1239, affiliated with, it now reads Local Union 1239 of the United Automobile, Aircraft and Agricultural Implement Workers.

    (Inaudible)

    Dominick L. Manoli:

    I don’t know, Your Honor.

    Dominick L. Manoli:

    I — I don’t recall.

    I don’t recall.

    (Inaudible)

    Dominick L. Manoli:

    Now, as I was saying that the company seeks to defend this on the ground that this is a mere identity that this — that this spurious, one of mere identification of the union.

    But to the court and the Board below found there was more involved here than a mere identification.

    What the company was insisting upon here is excluding all together, the International from the agreement.

    And as it said in its own words that the Local — that the Local should have the right to make its own contract.

    Now, we think that the bargaining representative is certainly which is entitled to full and exclusive recognition on the statute is certainly entitled to be a part of the agreement, to the collective-bargaining agreement.

    And that when an employer is insisting that the collective-bargaining agreement will be with the Local, rather than the International which has been certified by the Board that he is, not according that union the kind of recognition that the statute requires that he has to accord to that union.

    And that this will also relate the union’s statutory status and that this is just — not fall within the area of compulsory collective-bargaining, and that the employer may not insist upon a clause of this kind as a condition of the agreement.

    Has this problem arisen in the lower court before?

    Dominick L. Manoli:

    I don’t know of any other case Your Honor involving this problem.

    This is the only that case that I know of that when you speak of this problem I think it should mean the party to the agreement problem.

    Great Commission problem that we have here.

    Dominick L. Manoli:

    Yes that’s right.

    This is the only case that I — I know.

    It’s — I think that the reason for that probably is, Your Honor, that it’s a rare case where the employer is going to insist that the certified union is — shall not be a party to the contract.

    Felix Frankfurter:

    If — if this would prevail for instance the International couldn’t sue — couldn’t utilize 301?

    Dominick L. Manoli:

    International would have no legal standing upon this contract.

    Thank you.

    Earl Warren:

    Mr. Davis.

    James C. Davis:

    May it please the Court.

    Felix Frankfurter:

    May I ask at the outset whether you agree to the — the answer that Mr. Manoli just gave?

    James C. Davis:

    No, sir.

    Felix Frankfurter:

    You do not?

    I — I —

    James C. Davis:

    No, sir.

    Felix Frankfurter:

    — mean the very — the very specific question that I asked him.

    James C. Davis:

    No, sir.

    I do not agree.

    James C. Davis:

    I am not prepared to say yes or no to that question because that’s a question of common law, and that the law of contracts and I’m not at all sure of the answers in that area.

    And I don’t think they’re necessarily relevant or applicable to questions of labor law in this area so that —

    Felix Frankfurter:

    I didn’t to get you off —

    James C. Davis:

    — that — that’s all —

    Felix Frankfurter:

    (Voice Overlap) —

    James C. Davis:

    — right sir, I wanted to answer that and their —

    Felix Frankfurter:

    (Voice Overlap) —

    James C. Davis:

    — I would like to answer preliminary to starting on my argument I’d like to answer two or three of the general questions which where asked Mr. Manoli on argument because it maybe helpful while they’re fresh in the Court’s mind, on this question of how unions describe themselves and how they are accustomed to describe themselves.

    At pages 43 to 45 of the brief, we have made reference to contract clauses in the B and A of that sort of thing and as some of the Court well know there are some unions that do it one way and some another.

    The steel workers insist no matter how certified if possible that their contracts be with the International’s.

    The teamsters insist no matter how they’re certified that the contracts be with the Local or perhaps — perhaps with the District representative.

    This particular union in this case is versatile and as the record shows there are in the record attached copies of their contracts.

    Sometimes they sign as the International, sometimes as the Local, sometimes as both.

    So that very clearly this question of the way in which a union will be identified in the contract has been in varying ways the subject of bargaining and the subject of contracting in this area.

    Now, I think that —

    Earl Warren:

    That leads to — would that lead you to conclusion, Mr. Davis, that the employer could insist on bargaining with either that he wished either the International or the Local depending upon which one he —

    James C. Davis:

    No, sir.

    Earl Warren:

    — he felt closer to?

    James C. Davis:

    No sir, Your Honor.

    Earl Warren:

    What will be —

    James C. Davis:

    No, sir.

    Earl Warren:

    — what would the limitation be?

    James C. Davis:

    Well —

    Earl Warren:

    If your —

    James C. Davis:

    That’s takes me —

    Earl Warren:

    Now —

    James C. Davis:

    — to the core —

    Earl Warren:

    — if that breaks —

    James C. Davis:

    — of my argument but I will —

    Earl Warren:

    (Voice Overlap) —

    James C. Davis:

    — no I — I will be happy to answer is that —

    Earl Warren:

    So, I (Voice Overlap) —

    James C. Davis:

    — initially because —

    Earl Warren:

    — they’re on strike.

    James C. Davis:

    — that that’s the key to this thing.

    I think that this recognition question and the bargaining question has been given by both the Board and the counsel here and some what the lower courts a — an ad hoc treatment in each case and I don’t believe that any court or the Board has yet reached down to the fundamentals of this case.

    Now, there is no question but what we are obligated to bargain with the union and the statutory definition of bargaining means that we must meet and confer with the union in good faith as the exclusive representative of our employees.

    The statute says not one word about the name in which the union may identify itself in the contract.

    We can’t refuse to bargain, we can’t pick and choose what we bargain.

    We have to bargain with the union and I will demonstrate that we did.

    I do believe that the name in which the union may or may not or shall or shall not identify itself in the contract is a term or condition of the employment and is therefore bargainable and I will undertake to demonstrate that later, if that answered your question.

    Now, there’s one other question.

    Mr. Justice Frankfurter you suggested to Mr. Manoli and inquired as to what he would think if in the course of the bargaining the company were to insist that the union refer back to the people.

    The question is to whether or not they had authority and what they should do.

    I agree with Mr. Manoli that that would be an unfair labor practice for the company to do that.

    And that has been decided I think — I think that’s the effect of the Corsicana Cotton Mills case below.

    I think that’s far different, than was the case here where the company asked the union not to refer back to anybody.

    The company fully recognized the union’s representative capacity and said only to the union, “We ask that you agree to so and so.

    We don’t ask that you to go back to anybody.

    We don’t ask that you produce any further authority.

    We ask you across this bargaining table to agree to these things because we think there are terms and conditions of employment and we think we are entitled to have agreement to that.”

    So that I would concede that if we asked them to go back to refurbish their authority everyday, that would be clearly an unfair labor practice.

    But when we recognize their authority without question, but ask them to exercise that authority in a proper way, we believe that we were bargaining within the terms of the statute.

    Now —

    Earl Warren:

    Could you — could you require or could you insist upon a clause that would require them to submit all issues to vote of the union?

    James C. Davis:

    Issues under the contract?

    Earl Warren:

    Yes.

    James C. Davis:

    You mean before a contract is to be entered into, Your Honor —

    Earl Warren:

    No, I —

    James C. Davis:

    — as to where they should sign as to given issues or not?

    Earl Warren:

    No, as to — as to where there would be a strike and not over any issue that — that arise in the (Voice Overlap) —

    James C. Davis:

    Oh, I think we have right after the contract is signed.

    Then after we are in agreement with him or I think we have a right to ask them to agree, to a provision that will say, “Not that they not submit to people issues or what they should do on them but that before they exercise the right to strike.”

    That’s all we ask them.

    Now, Mr. Manoli stated this quite accurately in his oral argument here.

    It’s stated a little inaccurately in the Board’s brief.

    But as he correctly said to the Court, that provision simply says, “Mr. union, we ask you here and now across the bargaining table to agree, not that you will submit for advisory opinions to your constituents, what you will do or will not do about any given issue, or what position you will take in grievances or what position you were to take on anything else.

    Solely, do we ask that before you call a strike, we ask that you agree to submit the question to a vote.

    You’re perfectly free to call a strike afterward.”

    Now, we — we contend, Your Honor, that that kind of a provision advanced in good faith, is not a valid clause.

    We — we’re getting as bad as governmental agencies in their identification lingo here.

    We call that a limited “no-strike” clause.

    And I think those, too, indicate the — the thrust of our — of our reasoning.

    Felix Frankfurter:

    Your — your position is that you have a right to insist that they agree to something which of their own volition, they may agree to.

    You insist that they should agree.

    You insist to your right to hold out, for them to agree to put in a clause which they may choose to put in if they may so choose.

    James C. Davis:

    Well, Mr. Justice Frankfurter —

    Felix Frankfurter:

    Is that right?

    James C. Davis:

    — that statement is a little more sweeping than — than my position.

    My position is, that with respect to a term or condition of employment, and that’s the heart of this because nobody has ever defined that.

    And that — that’s why this case arises.

    That’s why the questions that have been posed here arise and I — I want to get to that before I’m through.

    But my position here is that with respect to a term or condition of employment and I think this is.

    We have a right to insist.

    We have a clear statutory right not to agree.

    We have a clear statutory right bringing us from making any concession.

    And therefore, we have a right in my opinion to say to the union as a condition of our agreement, to what you want, you must agree to what we want, provided they are in the appropriate realm of bargaining.

    Now, that carries to Mr. Justice Brennan’s distinction earlier between permissible and compulsory subjects of bargaining.

    And as I will attempt to demonstrate, there lies again the — the root of this case, because I think there are few if any bargainers.

    And with all due respect, to the Board and the lower court, few if any boards or a courts, that know the difference, if there any, between permissible and compulsory subjects to bargain because that — they — those have never been explored.

    James C. Davis:

    That question has never been explored from the ground up.

    It’s been attempted to be decided from the top down each time and on an ad hoc basis, and usually with and clear overlay of bad faith.

    Now, I want to make perfectly clear to this Court, and that makes a substantial difference in a way these questions are approached, that there is no question of the bad faith, of the company in this case.

    There were some suggestion here of hardcore.

    And my friend omitted to state that at all stages of this litigation, the general counsel before the Board, the Board before the Court of Appeals and still, there is an complete concession that the company in this case was at all times in good faith.

    Felix Frankfurter:

    Mr. Manoli stated in so many words there’s no suggestion of that case.

    James C. Davis:

    Then the machinery wasn’t working, Your Honor and I —

    Felix Frankfurter:

    You just (Voice Overlap) —

    James C. Davis:

    — I am sorry I didn’t — I didn’t —

    Earl Warren:

    Yes, he did.

    James C. Davis:

    — I knew he spoke about —

    Earl Warren:

    (Voice Overlap)

    James C. Davis:

    — hardcore but that — that is — that is the heart of this — that’s the heart of the case because, we have for decision here to what may a bargainer in good faith do about this things.

    Now, we have this — to my mind as — as a practical worker in this field the anomalous situation, which arises from this concept I assume of permissible and compulsory bargaining.

    They have the situation, where admittedly, these proposals the Board has always maintained and Mr. Manoli still states to this Court, both of these proposals, were legal to make, legal to include in the contract, legal for the union to accept.

    But that at some stage in the game, the proposal so legal to make and legal to accept became illegal, because of insistence.

    Now, as a practical matter, that the bargaining stages, when insistence replaces the strong persuasion or vigorous urging I don’t know.

    It is argued here that — that this company with a small plant in Western Ohio in its first contract compelled the United Auto Workers to agree to something that they didn’t want to agree to.

    That is an interesting concept to me, too.

    I don’t know when compulsion operates against that union.

    There was also stated here that the Local agree and signed the contract.

    That is true but that’s not all the truth.

    The truth of the matter is that this union and this company have had a long history of bargaining at the Pesco Division of Borg-Warner, another division making the same product in Cleveland Ohio, in a heart of an industrial area.

    The same bargainers Mr. Adams who represented the company here, Mr. (Inaudible) who represented the union here, had been bargaining with each other for years, at Pesco and they bargained in and out of strikes.

    The record here is that when this division was opened, the UAW came down avowedly to get the Pesco rates of pay.

    Now, this was a hard bargaining.

    There isn’t any question about that but it admittedly was in good faith.

    Now at Pesco, two years before, I think it was, the certification, at Pesco is Local Union No. 269 of the International Auto Workers and so forth.

    They bargained right up to a strike at Pesco as to whether the union would be identified in the contract by the local name as the company attempted to insist, or and as it was certified, or as the union insisted, and successfully insisted in that negotiation, to identify the union, the bargaining representative.

    Now, there’s only one bargaining representative in all of these cases.

    James C. Davis:

    And the bargaining representative at Pesco, the union insisted be identified as the International but the Local is the only one certified.

    The International, UAW and so forth, and its Local 269, and they bargained that right up to a strike.

    And the company had to decide whether to take the strike or to accept a recognition identification, call it what you will, clause which did not identify the union in the name by which it was certified, but identified it in a different name.

    Now, the same bargainers, moved some 80 miles from Cleveland to Wooster and start this negotiation.

    Now, as Mr. Manoli said this was — it was a consent election, Your Honor and the —

    (Inaudible)

    James C. Davis:

    Well, the — the —

    (Inaudible)

    James C. Davis:

    That’s right and it was a consent election and nowhere was anybody identified as the International (Inaudible) Union.

    The names on the ballot were UAW-CIO, UAW-AFL.

    (Inaudible)

    James C. Davis:

    That’s right.

    And there was closed election.

    But in the campaign before the election, and this is all in the record, the union and I — the bargaining representative ultimately selected and its only one representative no matter what facet of its organization may be treated, came to Wooster and campaigned, there was no local in existence at Wooster at the time of the representation election that came to Wooster and bargained and campaigned on the ground that you will have your own contact, your own local and your own officers, and you’ll get Pasco wages.

    Now, in that background with the same bargainers, the same protagonists arose the issue in this bargaining as to how the union would be identified.

    The Board says, in its opinion in this case, that, of course, we were free to reject any recognition clause, naming the union by anything other than the certification.

    And I say that is “life in a never, never land” so far as bargaining is concerned.

    We weren’t any freer to reject it here than we were to reject at Pesco.

    The first proposal that was served upon the company at Wooster was identified as proposal of Local 1269, I think it was, of the United Auto Workers.

    It was handed to the company by the local president.

    It wasn’t identified as proposal of the International, but it was a proposal of the bargaining representative, and it was identified as proposal of Local No. 1269 or 1369, I’ve forgotten it.

    In the body of the proposal it was suggested that the bargaining representative be identified as the International Union of Automobile Agricultural Implement Workers, UAW-CIO, and its Local 1369.

    Now, of course, in the light of the campaign that has been conducted, it was a fact of life that the union had to tag the Local into the name, and I — I understand that.

    And that’s all right.

    But equally in the light to the campaign in good faith I think we had a right to test what they were talking about and say, “Well, we just rather have you identified in the name of the Local.”

    (Inaudible)

    James C. Davis:

    If Your Honor please, it is suggested in the Board’s brief that we were over tender, of our employees.

    I reject the suggestion.

    We were looking after ourselves and as I have argued in the main brief, practical experience at least, in our part of the world shows that the emphasis which is placed upon the agency of the representative charged with the responsibility for the administration of the contract, has a direct effect, sometimes one away and sometimes another on industrial fees, the ease with which matters go forward.

    The ease would which grievance problems are washed out.

    (Inaudible)

    James C. Davis:

    I don’t know, Your Honor.

    The union was just as interested in it as were we, and we have found that when the major emphasis, is away in many unions, we get much more difficulty with determining problems such as grievance time, promotion increases, job bidding that sort of thing, they are — there are enumerated at page — well, 17.

    Now, this is are brief in Court of Appeals but there were some 30 issues, in issue, at the time the strike took place, and among them were, paid grievance time, promotion increases, wash-up time, merit increases.

    Union representation during over time work that is how many and what storage or the like should present on an overtime shift, not normally working there, job bidding, arbitration and the like.

    Now, we found, and I think it’s the experience of many bargainers, as a practical matter that where the emphasis — where the emphasis lies locally or internationally will affect the resulting agreement and the administration of the contract.

    Now, there are some instances where my clients would prefer to have the emphasis on the International because they think that that adds greater stability to the contract and its enforcement.

    There are other instances where in good faith they believe that the emphasis on the Local has a real effect on working conditions in the plant.

    (Inaudible)

    James C. Davis:

    That is not been our experience Your Honor, and has clearly not been our experience in this particular area and not at the Pesco Division which was the direct ancestor —

    (Inaudible)

    James C. Davis:

    — of the situation here.

    (Inaudible)

    James C. Davis:

    No, there we have International administration.

    We had local certification, but insistence by the union upon International identification and we have had very heavy International administration which is one of the reasons that we in good faith sought to emphasize local administration at the Wooster Division, not for any solicitude for our employees but for the — our best judgment as to what would best produce industrial peace in that plant.

    Felix Frankfurter:

    And what you are saying is that you have the right insist of your — what you would like to call yourself to ensure your intimate point of view, you have a right to insist where the emphasis should lie.

    James C. Davis:

    Yes, sir.

    Felix Frankfurter:

    That’s your position?

    James C. Davis:

    Because — yes sir, because I conceive the way in which the union is identified in the contract to be generally recognized subject of bargaining and thereby to have become, if it was not initially, a recognized term or condition of employment or provision which with reason has a direct effect, there are.

    Felix Frankfurter:

    Are you going to deal with the problem of who by appropriate machinery has been made designated as a matter of law that designated agent and therefore to enforce at law, or whatever rights may approve of such a decree?

    That I take it is a burden to Mr. Manoli to argue that as machinery for determining who represents the man, that person who represents the man is in fact to represent.

    James C. Davis:

    Well, Your Honor, that to my mind embarks us out on the sea, of what is the nature of a collective bargaining contract.

    Is it a contract?

    Is it a contract between the union and the company enforceable by each?

    Is it a contract for the benefit of third persons, is at the set of ground rules by which the contract of higher between the company and the individual man may be judged?

    This Court’s wrapped —

    Felix Frankfurter:

    (Inaudible)

    James C. Davis:

    — or is it sui generis.

    Felix Frankfurter:

    All right.

    I can assure you (Voice Overlap) —

    James C. Davis:

    Now, this Court has grappled with that question and I am not crystal clear as to the result and — and I don’t believe that that is dispositive of this issue.

    So, in direct answer to your question, I did not propose to deal with the common law effect or the right of either the union, the representative, or the company, or in what name, or how to enforce the contract in lieu of breach thereof.

    Felix Frankfurter:

    May I say you’re a wise man to abstain from that, not to get into that quagmire but I still insist that the question has to be the faced, what it means under the Act for somebody to be made the organ of speech and the promoter of certain interests of labor people called the bargaining agency.

    James C. Davis:

    Your Honor I agree the question has to be faced but I am reasonably certain, it does not have to be faced in this case and may I therefore beg to be excused.

    Felix Frankfurter:

    Sure.

    James C. Davis:

    Now —

    (Inaudible)

    William J. Brennan, Jr.:

    Well —

    James C. Davis:

    Yes, sir.

    (Inaudible)

    James C. Davis:

    In tone, in atmosphere, the Local succumbed as Mr. Manoli suggested not on its own initiative but at the direct order of the International representatives.

    The contract which they signed, and by the way, this evidence is without dispute, that it was always the idea of the company that the International would monitor the contract and would sign it, approving it.

    That it would never be signed without the approval of the International.

    The contract which was ultimately signed was taken to Detroit, and approved by the general executive committee of the UAW at Detroit before the Local was directed to sign it.

    And the Local were directed to go in and sign the contract by the responsible International officer so that there was — there’s no fragmentation of this —

    (Inaudible)

    James C. Davis:

    In the administration of it afterward it was administered by both Local and International officers.

    (Inaudible)

    James C. Davis:

    Yes sir.

    In emphasis there were more things settled at the plant level through the Local officers and without making a big deal about it with — with International officers.

    In fact, the bargaining unit — now, this was with International, the bargaining unit was expanded.

    There was a — an — another small division moved into the plant.

    And negotiations were had with both local and international representatives expanding the unit including these men in and industrial peace followed with no — with no question, but —

    (Inaudible)

    James C. Davis:

    No sir the — the agreement has terminated and has not been renewed largely as result of this litigation and other facts.

    Earl Warren:

    Now, Mr. Davis.

    James C. Davis:

    Yes, sir.

    Earl Warren:

    Your answer to Justice Frankfurter troubles me where you said you didn’t — you didn’t feel you had to meet in this — in this case, the question that he asked you about your departure from — from dealing with the — the certified bargaining agent.

    Now in —

    James C. Davis:

    If — if —

    Earl Warren:

    — as — as I read this certificate, it says that the — the ballots had been a cast for International Union, United Automobile Aircraft and Agricultural Implement Workers of America CIO and that pursuant to Section 9 (a) of the National Labor Relations Act said organization is the exclusive representative of all the employees in the unit defined in the agreement for consent election.

    James C. Davis:

    Yes, sir.

    Earl Warren:

    Now, how — what gives you the power to overwrite that when it — when it says that that union is the bargaining agent?

    James C. Davis:

    Mr. Chief Justice, in the first place, may I very respectfully suggest that we do not think we have overwritten that, nor do I think that we have departed from the certificate, which is — and I — I did not mean to avoid Mr. Justice Frankfurter’s question except as he was — I thought asking is to what the common law of contractual relations, were.

    Now, I think the International’s got a right to enforce this contract.

    The union’s got a right to enter — to enforce the kind of — the bargaining representative, and it is the international as a whole.

    Now, the — the statute says, that the representative elected by the people shall be the exclusive representative.

    The representative elected by the people as this record shows was not this long name International so on, so on.

    All they had on the ballot was UAW-CIO, that’s all.

    Earl Warren:

    Well, the certificate says it was.

    James C. Davis:

    Then Board certifies the International Union in its full name but which never was presented to the people.

    Felix Frankfurter:

    Or there wasn’t a local at the time (Voice Overlap) —

    James C. Davis:

    There was no local at that time Your Honor —

    Felix Frankfurter:

    — so they couldn’t have named the Local.

    James C. Davis:

    That’s correct there was no local at the time.

    (Inaudible)

    James C. Davis:

    In said election.

    (Inaudible)

    James C. Davis:

    That’s right, that’s right Your Honor.

    (Inaudible)

    James C. Davis:

    That’s correct.

    (Inaudible)

    James C. Davis:

    That’s correct.

    (Inaudible)

    James C. Davis:

    That’s correct.

    (Inaudible)

    James C. Davis:

    There’s no question about that.

    Felix Frankfurter:

    But they’re going from there, through the —

    James C. Davis:

    There’s no — excuse me, sir?

    Felix Frankfurter:

    If you go on from there the — the concession — that doesn’t mean — the answers you made, yes, yes to all these in going from there to answer the Chief Justice’s question —

    James C. Davis:

    All right, the —

    Felix Frankfurter:

    (Voice Overlap)

    James C. Davis:

    The — the — in — in my — in my judgment, Your Honor, the — there is no representative under the facts of this case and under the constitution of the union independent and apart from the Local.

    No man can be a member of this union without being a member of the Local.

    The constitution so provides.

    The constitution provides that the International officers as such have no authority even to negotiate a contract without the approval of the Local.

    Now, I agree, that those are all matters of internal administration, internal law of the union which the union would from time to time have a right to change wholly independent of the company and the company has no right to dictate that.

    But I say that it is a long established practice in industry, in this country to bargain with unions, as to the name in which they shall be identified in a contract and that the certificate has never been thought to be a bar to that and has never been thought to be derogated by that by either unions or companies.

    We are not seeking here to contract with a separate organization.

    And it is a question in my opinion, Your Honor, of what is or is not a term or condition of employment and therefore, a matter of bargaining area and not a question of recognition.

    The statute never uses the word “recognition”, never uses the word “representative status”.

    Those are gloss and grafted on the statute by courts who have moved into this thing without — without segregating recognition, bargaining area and good faith.

    They’re — they’re all blended together.

    Now, it’s my position that the statutory requirement of recognition is very simple.

    It is meet, that’s the language of the statute, that — it’s defined in 8 (d), the — the obligation of bargaining collectively is defined as the duty to meet and confer with the representative of the employees and then if you engraft on to that, the provision that you must do so as the exclusive representatives — representative to the employees to discuss terms and conditions of employment.

    There is no dispute but what we met and conferred with Local representatives, International representatives.

    They’ve got what they call a Borg-Warner counsel, with Borg-Warner counsel representatives.

    We met and conferred with every union officer of what every category that ever presented himself in our door.

    Earl Warren:

    But I understood Mr. Manoli to say that you refused even to let the International to be a partner in this contract.

    James C. Davis:

    Well that —

    Earl Warren:

    — (Voice Overlap) —

    James C. Davis:

    — that is the —

    Earl Warren:

    — that they do — you prove them out if the is he word.

    James C. Davis:

    — that is a legal characterization which — which I do not accept because we have never failed, in recognition, to a meet and confer in good faith with International and every other representative of the union.

    We did bargain with them and insist, if the word be used, as to how they should be termed — recognized in the contract, identified.

    They did not have to accept.

    And the — the theory of the Act is that if that be a bargainable issue there is no duty to accept.

    There’s no duty agree.

    If we both approach it in good faith, and cannot agree, we are left to our economic resources.

    But I say that recognition under labor law, under this statute, goes no further than the statutory requirement that we meet and confer in good faith with the union as the exclusive representative and don’t go behind it, and we never failed to do that at any time.

    Felix Frankfurter:

    Are you suggesting that you would have been prepared to accept a clause, agree with them, which said in effect and — and try to say this (Inaudible) that in every possible way, the International is the bargaining agency but you simply don’t want their name in the contract, is that your position?

    James C. Davis:

    No, I don’t think that’s my position, Your Honor.

    I — I would — I want —

    Felix Frankfurter:

    Then there must be some substance.

    James C. Davis:

    The substance to the position is, and I think we could — that, I think, is a fair question.

    The substance to the position is, and we could have put it into the contract in many, many words, we signed the contract with the International and we recognize you as the exclusive agent in your words but we want it understood that the principal responsibility for handling grievances, for handling stewards’ time, for the size of the grievance committee and all of these many things, the primary responsibility will be by you on your behalf handled by your local union.

    Earl Warren:

    We’ll recess now.