Retail Clerks International Association, Local Unions – Oral Argument – January 17, 1962 (Part 1)

Media for Retail Clerks International Association, Local Unions

Audio Transcription for Oral Argument – January 17, 1962 (Part 2) in Retail Clerks International Association, Local Unions

del

Earl Warren:

Number 73, Retail Clerks International Association, Local Unions, Number 128 and 633, Petitioners, versus Lion Dry Goods, Incorporated, et al.

Mr. Lippman.

S.g. Lippman:

Mr. Chief Justice and may it please the Court.

This is a labor case and it arises on a writ of certiorari to the Sixth Circuit Court of Appeals.

We believe it presents a question of far reaching importance, involving the interpretation of Section 301 of the Labor Management Relations Act which provides suits for violation of contracts between an employer and a labor union representing employees and commerce, maybe brought in any District Court without any other jurisdictional regard.

The precise question presented to this Court is whether a Federal District Court, in this instance sitting in Toledo, Ohio, may refuse to exercise jurisdiction under Section 301 to enforce arbitration awards, rendered pursuant to a strike settlement agreement between the employer and the union which represented some of the employees of the particular employer.

The District Court found that they have no jurisdiction, the Court of Appeals sustained in what virtually amounted to a per curiam summary decision.

The District Court’s position was that 301 is to be given a very limited and narrow application and is only applicable where you have two factors, one, a collective bargaining agreement, which it did not define and two, where the union involved has been accorded exclusive bargaining rights, presumably under the National Labor Relations Act.

This interpretation, of course, is a very narrow one and excludes from the jurisdiction of the District Courts, the wide variety of contracts between labor unions and employers and we think stultifies and frustrates the basic congressional policy, which was to open the federal courts, overcome the procedural difficulties in state courts for the enforcement of contracts so that we could have a regime perhaps of peaceful settlement as a substitute to a regime of industrial warfare.

Now then, the basic facts are these, if it may please the Court.

The local unions involved here were the joined collective bargaining agent, bargaining with a group of employers on a multiple employer basis.

It enjoyed that status for a period of roughly 20 years, during which the period of course it negotiated numerous collective bargaining contracts.

In November of 1947, the parties were in negotiations for a successor agreement, an impasse developed.

The union elected to go on strike, and struck one of the employers involved here.

It was a long and bitter strike which lasted for approximately 13 months.

During the period of the strike, considerable litigations ensued.

In December of 1958, the Toledo Mediation Committee, headed by Monsignor Ryan, intervened, and through his good offices, succeeded in bringing the strike to an end.

However, as a condition of bringing the strike to a termination, the union was requested — the union withdrew its claim as the exclusive bargaining agent even though there were hundreds of employees on strike, and stated it would not renew its request for — as the bargaining agent unless and until it was certified.

It agreed to cease all picketing activities, dismiss all litigation, execute mutual releases, releasing all parties from any and all liabilities arising out of strike.

The employers, on their part, agreed to reinstate all of the strikers without discrimination to their former stations and stores, agreed that they would not discriminate against them and that they would not be discharged except for just cause.

Also agrees that notwithstanding the union’s disclaimer that it would not request bargaining — exclusive bargaining rights that the union would or it’s representatives would be permitted to access to the stores within reasonable hours for the purpose of communicating with employees.

It was also appended to this strike settlement agreement, the complete panoply of wages, hours and working conditions actually representing the terms of the expired contract which the union sought to approve, but was unable to obtain its objective in addition to certain adjustments which the employer had unilaterally made during the course of the strike.

John M. Harlan II:

How would this mediate that the private parties (Inaudible)?

S.g. Lippman:

I do not believe that it has any statutory basis.

It is a private organization which publi — which serves in the public interest.

It is a very well-known agency and I believe it’s called the Toledo Labor Management Committee.

Earl Warren:

It wasn’t just an — it wasn’t just an ad hoc committee?

S.g. Lippman:

No, sir.

It is a continuing body and has existed for many years and a great deal has been written about the operations of this committee.

Potter Stewart:

It has a long history in —

S.g. Lippman:

It has a very long history.

Potter Stewart:

— dating back to the 1930s isn’t it?

S.g. Lippman:

Yes, sir, a very long history.

However, within two or three months following the — I might also point out one very important point.

The strike settlement agreement provided that any disagreement respecting the interpretation or application of the agreement would be subject to grievances and would also be subject to final and binding arbitration by the Labor Management Committee.

Within several months, several matters were submitted to the Labor Management Committee.

Some of them were returned to the parties for negotiations, others were decided in favor of the employer, but two particular grievances were decided in favor of the union.

One, that two particular striking employees should be reinstated to their precise former stations in the store and that two, the union which had been denied access to the employee cafeteria, for the purpose of communicating with the employees, should be granted that — that prerogative because that was one of the provisions in the agreement.

The employers refused to comply, petitioned the Labor Management Committee for reconsideration.

The Committee, reaffirmed that’s holding, pointing out that its decisions were final and binding and that they were correct, nevertheless, the employer still refused to comply.

The union to that point has the alternative or perhaps resorting to economics — to economic action, continuing the strikes and the activities involved for filing action for specific performance of the arbitration of warrants.

The union had already been on strike for a long period so a great deal suffering is involved.

The union decided to file an action under Section 301 for a specific performance of the arbitration of warrants.

The record is here on stipulation which consist of the pleadings plus a stipulation of facts.

So, we have a rather short record here.

The lower court, as I indicated earlier, and the lower Court opinion is really the one which must be reviewed because the Court of Appeals’ opinion is a virtual endorsement of the reasoning of the lower court and doesn’t set forth any other rationale, they indicated that the lower court held that this was not a — that 301 is limited to a collective bargaining agreement.

A strike settlement agreement, without examining or explaining the terms and conditions, they said — the lower court said, it’s not a collective bargaining agreement.

As to why it was not a collective bargaining agreement was not made clear because surely it was executed and negotiated on behalf of numerous employees.

And then it further discussed the proposition and made a specific finding of fact that the union have disclaimed its right to be the bargaining — the exclusive bargaining agent.

And this was also a condition to the exercise of lower court to jurisdiction under Section 301.

Studying the opinion, it’s apparent to me that if there is any rationale to the lower court’s opinion, it is found in the effort to say because Section 301 provides that suits for violation of contracts between an employer and a labor organization, representing employees in an industry affecting commerce, that the phrase representing employees presupposes a collective bargaining agreement, and from there, they have attempted to move a step further and therefore, when you’re talking about representing employees, you’re talking about an — a representative which is the exclusive bargaining agent because we’re talking about the National Labor Relations Act and its amendments.

Potter Stewart:

I suppose that Judge Kloeb had in mind when he said at page 46, whether there is justification for taking the time of a court because of these differences between the parties has opened the grave question.

Isn’t that sought influence to the decision in this case?

And then he refers to the causes of action as tenuous indeed based on grievances that are not waiting, isn’t it?

S.g. Lippman:

Well, of course, it is a very astonishing holding when all we have — when a union after 13 months of strike has the soul fruit of the strike as disagreement and its enforcement and then for a court to say that it is taking up too much of the court’s time to seek to enforce an agreement obtaining the reinstatement of employees to their former stations, giving the union access to the store which is the only effective means through which we could continue to make a communication, well, I — frankly, I’m in rather astonishment because in effect, he was not only saying that in his judgment, these grievances were not important.

Perhaps, they were not to him but I can assure in this honorable bench, they were of great importance to the union because as a result of their position, the agreement was unenforceable and was a scrap of paper.

And the dispute and the disruptions continued and that, of course, may have influenced his judgment but if so it is very unfortunate because he laid down at — on a basis of that a — a doctrine of far reaching importance.

I was, to continue my discussion, Mr. Justice Stewart.

I pointed out the — what appears to be the rationale of the court.

I think it is plain that the court in that rationale was in serious error because the phrase which he relies upon is in no way a limitation on the jurisdiction of the court, but is the basis under which Congress regulates labor relations.

S.g. Lippman:

It is the interstate aspect under which Congress could take hold of the dispute, under which Congress could enact 301.

It of course says representing employees in an industry affecting commerce as defined in this chapter and so, it obviously was no way any jurisdiction of limitation.

If I might, perhaps, speak a little harsh, I might say if one were to take that very same interpretation and go to Section 301 (b) which is the following section which sets of the procedural aspects — some — in some procedural aspects under 301, there it provides that a labor union shall be responsible for the acts of their agents and it uses the same precise language, representing employees in an industry affecting commerce.

If the Court were to — if the Court’s interpretation would’ve — were to prevail, that would mean that labor unions would not be responsible for the acts of their agents except in a situation involving a collective bargaining agreement and where the union is acknowledged and certified bargaining representative.

That, of course, would be a plainly and absurd result because Congress has set up in Section 303, actions for damages where unions are — have engaged in secondary boycotts, where unions have engaged in other kinds of labor union activities which are made to basis of damaged actions.

But the court, in no way, saw — came to grips with this particular problem I might point out.

Potter Stewart:

Before you —

S.g. Lippman:

Yes sir.

Potter Stewart:

— I’m still a little troubled by the court’s reasoning — the rationale of the court’s decision and it strikes me and I’m now referring to page 47 of the record right at the end of the last full paragraph on that page that what the court may have been saying is that this contract wasn’t — it says, it wasn’t entered into for the benefit of — of these plaintiffs and that therefore, there might be some question of standing of whether these were proper parties?

S.g. Lippman:

He did not in anyway rationalized that because it is plain that that was not in issue.

In that respect, it is plain that the agreements under which arbitration occurs, the statements of understanding occurred between the employers and the union —

Potter Stewart:

Of course part of the — part of the agreement, part of the deal was that these plaintiffs, that is the labor union locals, should get out of the picture until or unless they were certified, isn’t that correct?

S.g. Lippman:

That is not — that is not true because the — because the plaintiffs, the unions were there negotiating this agreement on behalf of their employees.

The union obtained the right to send representatives into the store for the purpose of communicating with employees —

Potter Stewart:

And that’s one of the grievances here, is it not?

S.g. Lippman:

Yes.

That’s one of various grievances.

In addition to that is that it’s quite clear that when — that the union has a vital concern with the enforceability of the contract as a whole, the sole fruit of the strike.

It’s also clear that the union —

Potter Stewart:

Didn’t they agree that they would no longer purport or seek to represent employees —

S.g. Lippman:

It did not —

Potter Stewart:

— until they were certified by the NLRB?

S.g. Lippman:

It did not quite say to represent employees if they will not seek to be recognized as the exclusive bargaining agent.

Potter Stewart:

I see.

S.g. Lippman:

But the right to represent employees —

Potter Stewart:

I see.

S.g. Lippman:

— is a basic right as Mr. — as just — as Judge Hand pointed out in the Dowd versus Retail Clerks case. Even in face of a certified bargaining union, a rival union may still be chosen by certain employees to represent it in the handling of grievances and in the situation which is in no way inconsistent with the certified bargaining status of the rival union and surely in the situation of that type of the kind considered by Judge Hand in Dowd versus Retail Stores were fruit in our brief.

Felix Frankfurter:

But no — no arrangement can be made with such an outside body that’s different from arrangements made with reference to other employees?

S.g. Lippman:

Which — which in anyway contradicts the basic agreement, that’s correct sir.

John M. Harlan II:

(Inaudible)

S.g. Lippman:

Oh surely — oh surely, I mean if plaintiffs have as much, they were — it was much for the benefit of plaintiff as any collective bargaining agreement as any kind of arrangement —

John M. Harlan II:

(Inaudible)

S.g. Lippman:

Precisely.

John M. Harlan II:

(Inaudible)

S.g. Lippman:

Precisely sir.

John M. Harlan II:

(Inaudible)

S.g. Lippman:

Precisely sir.

Yes sir, quite precisely.

John M. Harlan II:

(Inaudible)

S.g. Lippman:

Yes sir.

Let me tell you about that sir.

As this Court has pointed in Lincoln Mills, both the majority of the dissenting opinion agreed on this point that the legislative history of 301 is — is cloudy and confusing, but there’s one aspect which is quite clear.

The Senate bill which sought to enact a provision similar to 301 did have reference to collective bargaining agreements.

John M. Harlan II:

(Inaudible)

S.g. Lippman:

In terms and such language, but without the finding just what is meant by collective bargaining?

The House bill has no such reference.

In conference, it was agreed to delete the reference to collective bargaining and present 301 as it’s now written is the House version of 301, making absolutely no reference to any collective bargaining or exclusive bargaining status.

John M. Harlan II:

(Inaudible)

S.g. Lippman:

Correct sir.

The phrase, I think, originated with the (Inaudible) was grabbed in their monumental study, I think they used that term for the first time and it deferred generally even — it referred generally to agreements between unions without regard to whether they have exclusive bargaining status.

The Court, of course, is cognizant particularly Justice Douglas because he reviewed the situation in one of his opinions that prior to the Wagner Act, it was quite common for unions to enter into contracts only on behalf of their members, only in behalf of certain groups would —

John M. Harlan II:

(Inaudible)

S.g. Lippman:

And those were the steel industry agreements that was with the original automobile industry agreements and that Congress was quite cognizant of that situation.

And it was precisely the kind of situation which this Court reviewed in the consolidated Edison case where it recognized that public policy would be — would be enhanced by the enforcing of an agreement with the members only contract there.

And of course, this is one of the difficulties with the lower court’s opinion because by the lower court’s standards, you could not enforce — you could not enforce such agreements.

By the lower court’s standards, you could not enforce for example an agreement which is entered into under Section 8 (f) of the Amendment to the Taft-Hartley Law.

Under 8 (f), as the Court may well know, building trade unions have the privilege of entering into contracts with contractors prior to the hiring of any employee even though they have — even though the majority status has in no respect been established.

By the Court’s standards, of course, there could be no such enforcement so that lower courts would have no jurisdiction to in any respect to consider these matters.

A consent agreement for an election in which a union perhaps is picketing and claiming it’s entitle to be recognized, the employer says are okay, I’ll enter into agreement with you for an election to determine whether or not you are entitled to represent the employees.

The union has no status.

S.g. Lippman:

Surely, that is within the public policy to resolve a question of that sort.

If the employer reneged on his agreement under those circumstances, this lower court will hold that it could not enforce such agreements.

Or if the union was to be — to engage in organizing activities and there should be something to discharge and the union threat this Court a strike and the employer says, “I think this was a just discharge and the union says okay” submit it to arbitration and the answer to a stipulation to be submitted to arbitration, the employer reneges.

Shouldn’t that be the kind of an agreement which is enforceable?

But actually, our precise — the precise facts of our case is really much narrower because what we have here is not really the enforcement of the agreement as a whole.

What we have here precisely is merely the enforcement of certain arbitration awards rendered in favor of the unions and the employees involved.

Arbitration awards in which the employer participated in the proceedings and as Justice Brennan pointed out, I believe, it was in the Steelworkers case, this in itself, although the arguments aside is a contract to accept and provide by the arbitration award.

And this, of course, is the narrower question but the court below in no respect considered this issue or to the — or to the Court in any respect below, considered the extent to which the strike settlement agreement in fact was a collective bargaining agreement.

In the general term that they used, collective bargaining is not a phrase of art, it covers a broad situation.

It seems to me, if the Court please, that the situation is precisely similar to the one which the Court faced in the Ryan case.

In the Ryan case, as the Court well knows, a criminal proceeding was involved in the Section 302.

Ryan was accused of, and found guilty, I believe, of misconduct in connection with the operation of his office.

And it was argued that 302 have no application to Ryan because it only had application to the exclusive bargaining representative that the word — the word “representative” meant exclusive bargaining representative.

This Court pointed out in its decision the extent to which the entire policy of the law would be frustrated if such an interpretational granted and this is not the policy of the Act.

So, it seems to me in this respect, the situation is quite similar to Ryan.

It seems to me that the vice of the lower court’s decision is found in its attempting to relate Section 301 to the unfair labor practices proceed — sections and the representation sections of the Labor Act.

Obviously, when Congress spoke about 301, it was not talking about unfair labor practices.

It was talking about enforcement of contracts.

Indeed, the legislative history demonstrates that an effort was made to hold a violation of a contract to be an unfair labor practice and this was rejected.

It is, of course, clear that the labor board has no jurisdiction nor does it attempt in anyway to deal with the enforcement of contracts.

This has left in the spirit of Lincoln Mills to the federal courts for the fashioning of a body of common law to be taken from our National Labor Policy and it is in no way related to 301.

Congress knew very well how the state concepts of majority representation where that was to be a prerequisite if Congress desired to do so because in Section 8 (a) (3) of the Labor Act dealing with making of union shops, it is specifically provided that the union must be the exclusive bargaining representative before it can enter into a union shop agreement.

In Section 8 (a) (5), dealing with the problems of collective bargaining before you can compel an employer to bargain with you, it is you being the union, the union must be the majority representative but those are other concepts entirely.

Those are not the concepts of Section 301 and I submit that the court erred, it doesn’t spell it out, but the only way I can rationalize it is that the court was relating 301 to unfair labor practices and yet there was a completely different policy involved.

I suppose the situation could be dramatized if this were to rise in the steel industry or —

Earl Warren:

We’ll recess now.

Mr. —