Scofield v. National Labor Relations Board

PETITIONER:Scofield
RESPONDENT:National Labor Relations Board
LOCATION:Union Free School District No. 15

DOCKET NO.: 273
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 394 US 423 (1969)
ARGUED: Jan 14, 1969
DECIDED: Apr 01, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – January 14, 1969 in Scofield v. National Labor Relations Board

Earl Warren:

Number 273, Russell Scofield et al., Petitioners versus National Labor Relations Board et al.

Mr. Urdan?

James Urdan:

Mr. Chief Justice, may it please the Court.

This is a review of a decree of the Court of Appeals for the Seventh Circuit.

The Court of Appeals upheld an order of the Labor Board which had dismissed unfair labor practice charges against a labor union.

The case raises the issue of whether it is an unfair labor practice under Section 8(b)(1)(A) of the National Labor Relations Act, when a labor union finds one of its members for exceeding a production quota, so called ‘ceiling’ set by the union.

These petitioners are employees of the Wisconsin Motor Corporation and —

William J. Brennan, Jr.:

And when you say set by the union, am I wrong that this was whatever the ceilings are they were embodied in the collective bargaining agreement?

James Urdan:

The subject of the ceilings was bargained from time-to-time.

William J. Brennan, Jr.:

But weren’t the actual ceilings agreed upon between management, no?

James Urdan:

They were not agreed upon in the sense that they were a limit on the employee.

The employee was free to work, free to make more than the ceiling permitted and the employer had to pay him under the collective agreement.

There was collective bargaining over the ceilings as to the general level of the ceilings, but never were the ceilings accepted in bargaining as a limit on the individual and as the individual who is complaining here.

Potter Stewart:

Mr. Justice Brennan’s question exposes what for me has been a difficulty in reading the briefs and to answer this argument and that is the apparent disagreement among the parties as to what the facts are.

You state as number one on the questions presented, referring to the ceilings, you talk about production quotas established and enforced by the union and the government trying to persuade us that really these things, while not explicitly written out of the collective bargaining agreement, are nonetheless where by custom, practice and basic recognition were part and parcel of the agreement between the union and the employer and that makes for two quite different cases.

I’m interested in knowing which case do we have before us?

James Urdan:

I think there’s some truth in both positions.

From the standpoint of the employees who are complaining here, the case we have is that a collective bargaining agreement was entered into.

This union bargained it and agreed with the employer and the collective bargaining agreement set no limit on the production or on the earnings of these men.

They could produce to their capacity, they could claim pay for that work and they would have to be paid for that work.

That is the bargain that the union made with the employer.

Now it is true that the employer and the union bargained from time-to-time about the level of ceilings, because the employer recognized this is as a fact of life in the plant.

He recognized that the union had these ceilings.

The employer recognized that it was in his interest to have the ceilings increased from time-to-time and he bargained for that objective.

He tried to get the ceilings removed, not totally successfully.

The union tried to get the employer to agree to the ceilings and they failed in that.

The employer never agreed to put a ceiling on the earnings of these men.

We have in essence a standoff in the bargaining.

Neither side got what it wanted, but as far as these employees are concerned, they worked under a collective bargaining agreement that permitted them to exceed the ceiling, to earn more and to collect their pay and the employer had to pay them, employer could not refuse to pay them.

This is their complaint that the union fine is bypassing the collective agreement and the collective bargaining process.

Abe Fortas:

Mr. Urdan may I see if I understand this, the collective bargaining agreement established or there was established pursuant to the collective bargaining agreement certain ceilings of any employee who produced above the particular ceiling was entitled to additional pay, is that correct?

James Urdan:

The collective bargaining did not establish ceilings.

The collective bargaining provided pay rates and pay ranges and if a man worked on piecework and he produced more pieces, he would be paid for whatever he produced and that is all that is in the collective bargaining.

Abe Fortas:

Is there a flat rate, flat rate no matter how much he produced or was there a point at which the incentive pay, that is to say a greater rate of pay was due?

James Urdan:

The incentive pay started from the beginning, but there were certain guarantees in the contract.

It was incentive pay all the way —

Abe Fortas:

But if an employee reaches a certain number of units, is he entitled to incentive pay beginning with the units at that point?

James Urdan:

The pay is computed on the actual production starting with the first unit.

The incentive pay follows all the way through.

However, a man is guaranteed certain rate if his production does not come up to certain minimum standards, in that sense you might say that the incentive rates starts at this point of guarantee.

Abe Fortas:

That is to say there is a guarantee and I assume that that guarantee is equal to the per unit rate times a certain number of units, is that right?

James Urdan:

The guarantee is generally in terms of an hourly rate —

Abe Fortas:

I understand sir that but I’m trying to get an answer to this question perhaps I am — I must be asking it very badly, but in your brief I’ve had the same difficulty with your brief as my brother Stewart.

As I understand that there is a ceiling whether it set forth as a ceiling or not in the collective bargaining agreement and that ceiling as I understand it from what you’ve now said is determined by taking the per unit wage rate and dividing that into the guaranteed minimum wage, a guaranteed wage then you get a certain number of units and over and above that the employee gets additional compensation per unit, is that the way it works or isn’t it?

James Urdan:

I would say that is not the way it works.

Abe Fortas:

Alright.

James Urdan:

There is not a ceiling in the collective bargaining agreement.

There is an incentive pay plan where the man is paid for the units that he produces.

Now the union has set a maximum on the pay that they want the man to earn.

They say only produce that many units that will get you up to that pay level, using the process of division as you just described it.

That is what the union says the man should do, and that is so called ‘ceiling.’

That is not reflected in the collective bargaining agreement as such.

The collective bargaining agreement establishes the rates for the units.

Abe Fortas:

Is that ceiling the same as the minimum guaranteed wage?

James Urdan:

No, it is a higher rate.

Abe Fortas:

It’s higher, alright.

James Urdan:

It exceeds the minimum guaranteed rate.

But there’s no ceiling and there’s no limit in the agreement as such.

The agreement says the man is to work eight hours a day.

Whatever he produces he will be paid for.

James Urdan:

The effect of the ceiling as shown very clearly by the record is that the man does not work eight hours a day.

He’s any kind of worker at all, he finishes his work much more quickly.

He has no need to abide by the agreement to work his eight hours.

Byron R. White:

But you are not suggesting that the union action is in breach of contract?

James Urdan:

I think we are very close, we are very close to this line.

We —

Byron R. White:

You are not suggesting that an employee who is also bound by the contract who works only enough to earn again the minimum and who never attempts to earn anymore is breaching the contract?

James Urdan:

This could be possible.

This issue has not been tested because the employer apparently has not made an issue of it.

Abe Fortas:

Are you serious?

Are you serious that any employee who doesn’t want or earn anymore than the minimum is breaching the contract?

James Urdan:

When you say breaching the contract, I think we are getting at a concept of what the employer is entitled to.

Employer is entitled to have the man perform a fair day’s work.

Abe Fortas:

Well, that isn’t what the contract says, is it?

Byron R. White:

Well, do you find that in the contract anywhere?

James Urdan:

Not that language, however the contract does set shifts and I think it is recognized that -–

Byron R. White:

Well are you willing to put your case on whether or not there is breach of contract there?

James Urdan:

Absolutely not.

Byron R. White:

Well, I wouldn’t think so.

James Urdan:

This not our position.

Potter Stewart:

You represent employees?

James Urdan:

That is correct.

Potter Stewart:

Not the employer.

James Urdan:

We represent the employees.

Potter Stewart:

You are the representative of employees.

James Urdan:

We represent the individuals.

The employer has not participated or raised any complaint in this proceeding.

Potter Stewart:

However, you are hardly in position say that that your clients or their colleagues have violated a contract, your argument is there anything any position like that, are you?

Byron R. White:

You wouldn’t suggest that your employer, your people are because you are attempting to earn incentive pay, but the employee who doesn’t attempt to earn incentive pay you are suggesting might be in breach of contract?

James Urdan:

What I am suggesting is that in an employment —

Byron R. White:

Or would you say that 10 employees all of them get together and say we don’t want to earn any incentive pay, and that’s all agreed that we won’t earn any incentive pay, you say that isn’t protected by such Section 7?

James Urdan:

An agreement to limit production, which is negotiated with an employer and which is incorporated in the collective bargaining agreement is protected.

An agreement to limit production, which is not negotiated, is not protected and there are numerous cases on this general subject that are in our brief as far as the employer —

Byron R. White:

I agree with that but then here there has been negotiated with an employer a scale of pay depending upon your effort and I doubt if an employer could just fire an employee under this contract for earning only the minimum pay?

James Urdan:

Well I tend to agree with that.

I think the employer here has never raised this issue.

I don’t contend that it is a breach of contract, nor do I consider that this is in anyway essential to the case of these petitioners.

William J. Brennan, Jr.:

Incidentally this banking arrangement I understand that — do I understand correctly, an employee need not report everything he has earned in a given period, but he banks it in the sense that sometime later he produces less units he can draw on the excess that he built up at an earlier time.

James Urdan:

That is the way the process works.

William J. Brennan, Jr.:

Well now doesn’t that require the participation of the employer?

James Urdan:

The employer has accepted this as a procedure —

William J. Brennan, Jr.:

No my question was doesn’t he participate in it?

James Urdan:

No the employee keeps his own records of his bank.

William J. Brennan, Jr.:

I know but doesn’t the employer participate in that arrangement?

James Urdan:

I would say he does not.

The employer pays —

William J. Brennan, Jr.:

What does he do —

James Urdan:

He pays for the production that is reported.

If the employee doesn’t report it, the employer generally doesn’t know about it.

William J. Brennan, Jr.:

You don’t regard that as participating later when he had done reports, the excess and some later pay period.

James Urdan:

The employer generally did not have records as to when the actual production took place.

William J. Brennan, Jr.:

That (Inaudible).

James Urdan:

The employer paid as the work was reported for pay.

Abe Fortas:

Well the care string appears though whatever it may be, I don’t know we’d say something suddenly appears and somebody’s work is done, isn’t that right?

James Urdan:

That is correct.

Abe Fortas:

Well then are you suggesting that the employer doesn’t know that anyway?

James Urdan:

The record is quite confused on his point, but the picture that comes out is that the employer does not reconcile the pieces flowing through with the pay records.

Employer knows the banking is going on, but does not reconcile —

Abe Fortas:

Is this a sovereign company, is this a sovereign company despite that kind of quaint practice?

James Urdan:

I think this is a very pertinent question.

James Urdan:

It has some humor in it.

The suggestion is made in the record that this practice benefits the company.

This is not correct and the company has had very definite difficulties from this practice.

I think we are concerned here with reconciling two of the decisions of this Court within the last two years.

In Allis-Chalmers case, we had the question of a union fine against a member for crossing a picket line and working during a strike, a question of whether that violated Section 8(b)(1)(A).

More recently, in the Marine and Ship Building Workers case, there was a question of expulsion of a member for having filed charges with the NLRB.

In the Allis-Chalmers decision, the holding was that there was not a violation of the statute.

In the Marine and Ship Building Workers case there was a holding that the statute had been violated, both cases involving union discipline.

I think if you look at the two cases, we find two questions that the Court is asking.

What is the union objective?

What are they trying to accomplish?

How does their objective comport with the policies of the act?

Secondly, what is the method the union is using?

Is the method one that conforms with the policies of the act?

Now looking first at the union objective, I think we have a case much closer to the Marine and Ship Building Workers and to Allis-Chalmers.

Allis-Chalmers involves an economic strike.

Union was trying to sustain and support that economic strike.

This is an activity that has the highest degree of protection under the act.

In Marine and Ship Building by contrast, the union was trying to restrict the access of the employee to the processes of the board, a very important policy was being offended.

Now here the union objective is simply to have more men on the job than the job requires.

It’s a matter of degree on this question of how men it takes to do the work.

In an extreme case, where you ask for pay for men who aren’t even there, we have an explicit unfair labor practice under the act.

There are lesser forms of this type of production restriction.

They are not unfair labor practices, but they are not even protected activities under the act.

If the employer sought to discipline the employee for this type of restriction, the employer could.

In fact, the union concedes this very point in its brief.

We have here —

Potter Stewart:

If the employer you said tried to discipline the employee for this type of restriction, the employer could and you said your opponent concedes that, I don’t understand the statement.

You mean, the — I suppose you are now answering Justice White’s question.

You are saying that the employer could fire the employee for not trying to make over time, is that it?

Potter Stewart:

What are you —

James Urdan:

It is not for not trying to make more pay —

Potter Stewart:

What is the meaning of the statement that I disclosed?

James Urdan:

A restriction on production by slow down, similar methods has been found to be unprotected activity under the act, such that the employer may lawfully discipline the employee for engaging in such an activity.

Potter Stewart:

And this case the applying that principle to this case, what do you say the employer could have done?

James Urdan:

In this case, the people who are engaging in ceiling practices to the point of not performing their work, as the record shows, stopping work an hour or two early and reading magazine —

Potter Stewart:

Because an hour or two before the eight hours have elapsed, they’ve completed their–

James Urdan:

They completed their –-

Potter Stewart:

And you say that having done so the employees could be fired?

James Urdan:

I am saying so far as the Act is concerned, this is an unprotected activity.

Now whether the employer could enforce a discharge in this case is a question under the collective bargaining agreement; and if the employer attempted to discipline an employee in this type of situation, he would be faced with the defenses and arguments that he had acquiesced to this, he had bargained the ceiling, he had accepted the ceiling, therefore he, this employer could not enforce discipline, but this would not flow from the Act and neither would this be a protected activity under the Act.

This would be a question of the contractual limitation on —

Potter Stewart:

This collective bargaining agreement provided that’s what the question would be in that kind of case, wouldn’t it?

James Urdan:

The collective bargaining agreement also provides restrictions on discipline. Discipline must be for just cause, this is the customary standard.

Abe Fortas:

Actually you are saying that contrary, aren’t you, that there are certain rights which the employee would have regardless of what the collective bargaining agreement provides in this situation, is that what you’re saying?

James Urdan:

If the collective bargaining agreement established the ceiling and said you cannot collect more pay no matter what you produce —

Abe Fortas:

Now suppose a collective bargaining expressly, in the collective bargaining agreement, employer and the union expressly agreed on a ceiling that an employee may quit and go home and then it provides for a — incentives for additional production thereafter, and then it provides for this banking arrangement, just exactly what’s here.

If that were clearly a part of the collective bargaining agreement, would you still say that the, these — that your clients have a cause to complain?

James Urdan:

Very definitely.

If the agreement permitted them to work for and earn more than that is what they should be permitted to do.

Abe Fortas:

But —

James Urdan:

Union cannot make a bargain with the employer and then pull it away by its fine?

Abe Fortas:

Suppose the agreement expressly said that the union, that pursuant to union rules employees maybe prohibited from working more than enough to earn the base pay?

James Urdan:

I can only say that would be a very remarkable contract.

I don’t think the subject —

Abe Fortas:

What’s making here in effect is saying that it’s a part of the agreement they are saying that the employer acquiesced in it?

James Urdan:

I think this is the point raised in the brief of the amicus here, that the question of whether the union has a rule that can be enforced should not be part of the bargaining process.

The bargaining process should not get itself lost in this maze of having the employer looking into the union disciplinary process, deciding which union rules he likes, and which he doesn’t, and which should go in the contract and which shouldn’t.

This should be insulated from the collective bargaining process.

The employer makes an agreement here that says the man can be paid for what he produces, that is the deal the union agreed to.

James Urdan:

These men tried to produce just as the agreement tells them they may do then the union finds them.

It takes away the bargain that it made itself.

Now this is a very dangerous precedent for the collective bargaining process.

Collective bargaining process is the heart of this Act.

The whole concept of the Act is that the party should sit down, reason together, attempt to resolve their differences.

And when you permit the union to accomplish its objectives by finding its members, not by collective bargaining then the whole process has been weakened.

The fruit of the bargaining, the agreement has no meaning if the man can’t take advantage of it.

Certainly we are not within the realm of internal union affairs as that concept is used in the Allis-Chalmers’ case.

It’s no longer an internal matter when you tell the man he cannot earn the money that the collective bargaining agreement provides; this is the very heart of the wage and employment relationship.

Byron R. White:

Well, it’s (Inaudible).

James Urdan:

That is correct.

The statute protects the union member just as much as the non-member.

I think the Marine & Shipbuilding case of course is the example of this.

The union member has the same protection.

Congress did not make any distinction between the members and the non-members.

There are many cases that have pointed this out, Radio Officers’ and Teamsters’ case of 1954 setting forth this basic ground rule that a man can be a good, bad or indifferent union member.

He only has to pay his dues, that is the price of admission.

There is a quote from Senator Taft which appears in the footnote of the Allis-Chalmers decision which reads right on this subject.

Senator Taft said, “'(m)erely to require that unions be subject to the same rules that govern employers, and that they do not have the right to interfere with or coerce employees, either their own members or those outside the union, is such a clear matter, it seems to me to be so easy to determine, that I would hope we would all agree.”

The Act applies equally to the member and to the non-member.

This is established.

In this connection, I think we should look at the proviso to Section 8(b)(1)(A), so I think the proviso has been badly misconstrued.

I think the purpose of the proviso has been misunderstood.

The proviso says that the union may establish rules with respect to acquisition and retention of membership.

This has been looked at in the context of these fine cases as a guarantee that the union can control its members.

This was not the purpose of the proviso and nothing to do with control of members.

The purpose of the proviso was to permit unions to decide who their members shall be, not to tell the member what to do, but to decide who the member shall be was a concept of freedom of association.

The union can decide who will participate.

There is traces from the debate that went on in Congress preceding the introduction of Section 8(b)(1)(A).

It was a great issue in the congressional debates as to the closed shop.

James Urdan:

There is a lot of public concern about this issue.

The idea that the man had to belong to the union in order to hold a job.

The choice that was presented to the Congress either open up the union or open up the job.

There were strong advocates of the position that the union should be open that every man should have right to join the union.

Now this issue was debated and the unions didn’t like that idea and a number of senators, particularly from the South did not like the idea that the union should be open because they had segregated unions, and these very issues were debated explicitly and so the decision was reached, you don’t have to have an open union.

You don’t have to let people in if you don’t want to.

Instead we’ll have the open shot or the open job or you don’t have to be a member.

Now this was the background when Section 8(b)(1)(A) was introduced.

Section 8(b)(1)(A) says you cannot coerce a member, you cannot coerce an employee in the exercise of his rights under Section 7.

One of those rights being the right to participate in union activities.

Now the opponents of the open union became very concerned again.

They said is this going to open up the union?

Is it going to be considered restraint or coercion when we segregate or keep people out of the union and that is why the proviso was introduced.

It was to confirm this concept that the union didn’t have to be open.

The proviso was introduced simply to confirm the commitments that had been made in this debate on the closed shop.

It is not in any sense a grant of authority to control the actions of the members, rather it is to guarantee to the union that it can control its own membership and who will participate within the union.

Now, the proviso to 8(b)(1)(A) is not a grant of authority to discipline.

Now, we have also in this case a jurisdictional issue.

I’d like to devote a few minutes to that.

The petition for certiorari was filed within 90 days of the decree of the Court of Appeals.

The question has been raised whether the 90-day period should run from the date of the opinion of the Court of Appeals and an order that was entered that same day.

I think reviewing the record it will be perfectly clear that the intention of the Court of Appeals was that the decree of April 16th was the decree in the case.

The statute starts the 90-day period running from the date of entry of the judgment or decree.

It doesn’t say the date of the opinion, it doesn’t say the date of the decision, it doesn’t say the date of the resolution of the case.

It says the date of entry of the judgment or decree.

Now after the opinion of the Court on March 5th, the Board itself sent a proposed decree to the Court and the Board in its letter to the Court said after entry of the decree please send us a copy.

The Board acknowledged that there had been no decree at that point.

Subsequently, the court entered the decree and the clerk of the Court wrote to all the parties enclosing a certified copy, “Copy of the final decree entered by this Court on April 16, 1968.”

I think it’s perfectly clear what the court intended.

April 16th decree was the decree in the case and the petition was filed within 90 days thereafter.

Abe Fortas:

Is there any difference between the terms of the order entered as part of the court’s opinion on March 5 and the decree issued on April 16th?

James Urdan:

There is no difference in substance.

There is a difference in form.

The order of March 5, for example is entered by the clerk, the decree is signed by the judges.

The order of March 5 is in form tentative.

It says by its own terms upon presentation an appropriate decree will be entered.

It is in form a tentative order.

It was entered by the clerk without any notice to the parties.

The order of March 5 was not communicated to the parties and apparently the Board didn’t know about it, because it is sent along a proposed decree some weeks later, without even mentioning the prior order nor does the decree mention the prior order.

The rule of the court provided for entry of decrees following settlement and that is what was done here.

There is also a rule of the court providing for entry of judgment on the decision day, but the court quite obviously by this set of circumstances was not following that prior rule.

The court was not purporting to enter its judgment.

I think the cases as set forth in our brief establish that it is the intention of the court that must be given effect.

When did the court intend that this decree be entered?

And that is perfectly clearly April the 16th.

Earl Warren:

Mr. Come?

Norton J. Come:

Mr. Chief Justice, may it please the Court?

The jurisdictional point, Your Honor —

William J. Brennan, Jr.:

[Inaudible]

Norton J. Come:

Yes.

William J. Brennan, Jr.:

[Inaudible]

Norton J. Come:

Well, we believe nonetheless that under the Minneapolis Honeywell decision of this Court that the petition was untimely filed and that the 90-day period runs from the date of the March 5 order.

[Inaudible]

Norton J. Come:

Well, we were not served with a copy of that order, that is —

[Inaudible]

Norton J. Come:

No, I admit it does not make much equity.

[Inaudible]

Norton J. Come:

Right Your Honor.

Hugo L. Black:

You haven’t raised it?

Norton J. Come:

Yes we did.

Norton J. Come:

We raised it as — in our opposition to certiorari that was one of the —

Hugo L. Black:

You raised it in your brief here?

Norton J. Come:

Yes, we did Your Honor.

We raised it in the point two of our brief.

Byron R. White:

This is just standard practice related.

Did it ever occur that this – of the decisions within the rainy days of that order?

Norton J. Come:

Well, I think quite the contrary.

Byron R. White:

You raised the point before.

Norton J. Come:

Yes we have, we have raised it.

Byron R. White:

[Inaudible]

Norton J. Come:

All I know is that we have gotten the cert denied, whether that was the reason that the petition was denied or —

Byron R. White:

[Inaudible]

Norton J. Come:

Well that is correct.

There’s never been an authoritative ruling on it, however —

Byron R. White:

[Inaudible]

Norton J. Come:

In some circuits it is.

In other circuits —

Byron R. White:

All circuits [Inaudible]

Norton J. Come:

I would say that sometimes we are and sometimes we’re not.

I know that our practice is not to take a chance.

We always count our time from the date of the court’s decision.

We’ll start with a copy of the Court’s decision and we have found from practice that some circuits like the Seventh Circuit will enter an order or judgment the same day that they enter the decision.

William J. Brennan, Jr.:

Did you ever file a petition and then had the decree entered into? [Inaudible]

Norton J. Come:

Well, usually the decree is entered no later than 30 days after the decision.

William J. Brennan, Jr.:

What you got to remember whoever filed on the petition on that had [Inaudible]

Norton J. Come:

No, I do not.

That’s what it speaks here [Inaudible]

Norton J. Come:

Well, I think that the new federal rules of appellant procedure which have taken effect subsequent to this case purport to have a uniform provision covering this situation.

However, significantly that rule talks in terms of an order enforcing, the administrative order.

Here you did not have as you typically have whether that’s an enforcement of the Board’s order or an enforcement in part, any possibility that a subsequent decree might raise a question as to the terms of the prohibition that would be entered because all that the court did here was to affirm the Board’s dismissal of the complaint and no decree that could subsequently be entered, would there be likely, there would be any question as to what the terms of that is going to be.

Under the new rule [Inaudible]

Norton J. Come:

I think that it probably would be although —

[Inaudible]

Norton J. Come:

I think it probably would —

No question [Inaudible] in this case.

Norton J. Come:

That is correct, at least as I read the new rule.

Hugo L. Black:

I judge you’re inclined to present a [Inaudible] defense in favor of your jurisdiction or objection?

Norton J. Come:

Well, I’ll rest on the presentation I made Your Honor.

I do think though that we ought to turn to the facts of this case because I think that they are very important and because I think that they’re somewhat unusual.

Now on the facts of the case, as found by the Board’s trial examiner, the Board, and is sustained by the Seventh Circuit.

We do not have a situation that my colleague has been positing here.

What we do have here is a collective bargaining agreement, the operative part of which is set out at page 46 of the record.

It simply provides the jobs, I’m reading from paragraph 90, Section (1), shall be so priced as a result of a time study that the average competent operator working at a reasonable pace shall earn not less than the machine rate of his assigned task.

And then if you look at the bottom of page 47, you see that these were classifications, they set a figure called a machine rate for grade one and the contract goes on, there are five different classifications with different machine rates, that their rate as a lower rate that’s paid under a certain circumstances and is not irrelevant, but roughly what this machine rate represents is this.

It reflects a determination on the basis of time studies of the number of pieces of work that an average operator would turn out in an hour after an adjustment for such factors as picking up and cleaning tools, fatigue and personal needs.

Now this is all that the contract establishes here.

It doesn’t have a provision that my opponent has been referring to that an employee can be paid for turning out as much as he pleases or that he has to give over and above the machine rate here in order to fulfill his obligation, the work in eight hour day.

Now, by taking —

Is there an [Inaudible]

Norton J. Come:

Well the — there’s another provision of the contract that says that the work shift is from certain hour to the certain hours and that accomplishes —

Byron R. White:

Where the employee, where the [Inaudible] machine rate, he still should — must stay on the job.

Norton J. Come:

He still must stay on his job and the record shows that they do stay on the job, that the time that, that is available is spent usually in preparing the machines for the next day’s work that, although there has been occasionally some problem with too much talking, or card playing, or other things of that sort that whenever the union or the company has promulgated rules to cut that out, the, it has stopped and that the union stewards have cooperated in cutting out any of those diversions.

In addition to that, the allowances that have been worked into, in for fatigue and rest, and so on in establishing the machine rate, the evidence in the record shows is it allows for the equivalent of about 48 minutes, which the employee is free to take during the course of the time.

So if he prefers to take that at the end of the 8 hours shift, there’s nothing in the contract that would prevent him from doing so.

Now as this Court is well aware, unions have traditionally been opposed to incentive pay systems not primary for the featherbedding reasons that my opponent has indicated, but for the perfectly legitimate reasons that they have feared that this could result in employees working themselves out of jobs —

Byron R. White:

If this maybe so but they signed a collective bargaining agreement with the plan in it, didn’t they?

Norton J. Come:

I’m going to come to that in a moment after establishing — which I have currently do not have to belabor that you cannot say that a limitation on incentive earnings is something that is illegal on its face or horrendous.

It serves a very legitimate interest of a labor union and of its members and I might add as Justice White pointed out that these employees here were longstanding members of the union.

One of them had been a member for at least 17 years and had been a union steward throughout most of this period.

Although there was a union security arrangement in this case like the union security arrangement in Allis-Chalmers, it gave the employees the option of either becoming full-fledged union members or paying only a service fee, and all of the four plaintiffs here insofar as the record shows opted to become full-fledged union members and have been so for many years.

Norton J. Come:

Now since at least 1944, the union here has by membership rule placed a ceiling on the amount above the minimum or the machine rate which an employee member may claim as current earnings.

Now the, if the present, the time of this hearing, the ceilings were about $0.40 to $0.50 an hour above the machine rate.

They’re shown at page 50 of the record, the comparison between the machine rate and the ceiling rate.

Now, it’s important to emphasize that the rule as it has been consistently interpreted and applied does not preclude the employee from producing in excess of the ceiling.

And if he does, the extra production physically enters the flow of company operations.

The rule merely requires an employee to forgo demanding immediate compensation under the banking procedure that Mr. Justice Brennan referred to for a later time, when the receipt of the earnings would be less likely to disrupt employee morale and working conditions.

Well, for example —

Byron R. White:

Does the employee have to not work —

Norton J. Come:

No, there are times when the, employee’s machine is down due to a breakdown and other shortage of material or something of that sort now —

Byron R. White:

[Inaudible]

Norton J. Come:

No, under the — in those circumstances under the contract, the company would be obligated even though he was not turning out any production to either at the machine rate or at the lower day rate.

Under these ceiling banking system, the employee can draw on the earnings that he has accumulated in there and be paid at the ceiling rate and the company has co-operated by paying him at such a rate.

Moreover it has furnished the production cards to the union so that the union can periodically check compliance with the ceiling and further more it pays the union stewards for the time that they spend in checking the cards.

So that this ceiling system as it operates in this plant could not possibly operate without a substantial amount of employer co-operation and acquiescence and indeed that was the finding of the board and the trial examiner and the court below.

Now I want to get to the question of the collective bargaining.

The ceiling rule to be sure was unilateral in origin.

If we go back to 1944 or even to 1938 actually when it first started as a result of a gentleman’s agreement among the union members.

However, since then it has been regularly the subject of collective bargaining between the employer and the union when the contracts have come up for negotiation.

Indeed petitioners concede at page 3 of their brief that the ceilings have been the subject of collective bargaining.

Now I’ll refer you to the findings of the trial examiner on page 68 of the record, which sets forth the way the typical negotiation works, the reading as I pass through here.

Among the subjects embraced by the contract negotiations, is the setting of the ceiling rate.

And skipping down a bit further and so into typical negotiations, the employer begins by asking the union to agree to eliminate the ceiling and as the second alternative proposes a raise in the ceiling.

As an inducement thereof, it may offer a concession in a form of a raise in the guaranteed ROE machine rate and the raise in turn conditions be extent to which the union will agree to raise the ceiling.

And then the trial examiner concludes at the bottom of 69, the status thus achieved by the ceiling program is the product of hard bargaining.

And this is reflected even in some of the written agreements that the parties have concluded.

For instance, the 1953 contract which is not reprinted here, but is in general counsel’s exhibit 17, provided specifically that the previous agreement be modified to increase the ceilings, a total of 13 cents per hour.

In the 1956 strike settlement agreement, which is set forth in the record, at page 49 at the bottom it says the ceilings on earnings is to be raised ten cents per hour above the general increase of an earlier date.

And as the —

Abe Fortas:

Suppose there no incentive system here, suppose that all you had was a collective bargaining agreement providing for that every employee shall work an eight-hour day such and such and get paid such and such an amount.

And then the union made what’s commonly sometimes referred to as a featherbedding rule and said, nobody shall produce more than so many die castings or whatever it is per day and then the union, an employee violates that the union sues to collect a fine, what about that?

Abe Fortas:

In other words is your position totally dependent here on the fact that this is a piece work and incentive system within an eight-day framework, eight-hour day framework.

Suppose it was just an eight-hour day collective bargaining agreement.

Norton J. Come:

I think I’d have a much tougher case, but I think that you could read Allis-Chalmers, which I think is what we come down to the standing for the proposition that so long as the union discipline was confined to fines or expulsion that did not affect the job rights that was not within the reach of 8(b)(1)(A).

I think that I have an easier case here because the hypothetical that you have given me presents a problem of where the union rule would be going counter, as I understand the hypothetical, to the collective agreement of the parties and the question is whether that policy —

Abe Fortas:

Well, if you would concede at least for purposes of this discussion that if the collective bargaining agreement provides only for a certain right of pay for an eight-hour day then it gets to be a little difficult, doesn’t it, to arrive at — to distinguish that case from a situation where — from this situation.

That is to say, here you have and — if you assume that this contract does provide for an eight-hour day and if you would assume as I take it your opponent asks us to that the eight-hour day provision carries with it the implied obligation to work as productively as reasonably possible during those eight hours.

Then you get into a difficulty of distinguishing those two cases and I take that what you bring into play then to distinguish those two cases is the fact that this is kind of a half this and half that contract.

It’s half and eight-hour day contract and half a piece work contract, which provides for a level of acceptable production and then for incentive pay over that?

Norton J. Come:

That is correct.

I would say that only half of -–

Abe Fortas:

I don’t want to leave — I don’t want to leave your suggesting stand, I’m just trying to find out really how you would distinguish those two cases because to my mind that’s the number one problem?

Norton J. Come:

Well, I think you are quite right Justice Fortas in saying that our principle line of defense here is that the facts of this case show that this is not a case where what the union is doing here is going contrary to the collective bargaining agreement.

Byron R. White:

Well Mr. Come in responding to that question, you don’t think that the question between the union and the employee would remain the same in those two cases.

If there was a -– it’s a straight eight-hour day and the union could have put someone under ceiling on that.

It may be that every employee would get fired if he lived up to the union rule.

Norton J. Come:

Well I said that in order –-

Byron R. White:

Here you say and your position is that that the rule the employee obeys it isn’t a breach of contract and that the union and the employee couldn’t get fired for it.

But would do that change the legal position of the union vis-à-vis the member of the union?

Norton J. Come:

I don’t think it would if you read Allis-Chalmers as broadly as I was suggesting that it could be read, namely that the union, that 8(B)(1)(A) does not reach the union when it imposes reasonable discipline by hypothesis –-

Byron R. White:

And the union might be in breach of contract in an eight-hour day case itself with a rule like that?

Norton J. Come:

It might, as I said, if you read Allis-Chalmers as holding that 8(B)(1)(A) does not breach reasonable union discipline or violation of a membership rule that is not (Inaudible) or invalid on its face, then I think that we come off to the same conclusion in the hypothetical that Mr. Justice Fortas has given me as I am coming out here

.I don’t think however that it is necessary to answer that question for this case because on the findings of the court and the examiner in the Court of Appeals I think that we have a much easier case because on those findings what — the union rule here is not in conflict with the collective bargaining agreement.

This is one of those situations, which Professor Cox and Dean Shulman referred to in their writings when they have said that in the ideal arrangement you have everything spelled out neatly in the collective bargaining agreement, but more often than not the area of joint control is not that neatly spelled out.

You get an agreement which is not clear.

It represents a truce what as Professor Cox has said armistice line is nowhere on the map.

You have to spell that out from the total situation here and if you look at what has been going on in this plant for at least 17 years, you find as the trial examiner or as the board summed up on page 128 of the record, when it said, the company as a practical matter has accepted the ceiling as an integral part of the modus operandi and has recognized the ceilings as forming an important element of its negotiated wage structure and that is what we have in this case.

Hugo L. Black:

And may I ask you a question?

Norton J. Come:

Yes.

Hugo L. Black:

I want to be clear about what the real issue here?

You say a reasonable discipline?

Norton J. Come:

Yes, Your Honor.

Hugo L. Black:

Do I understand that here what has been done is that workers have worked, they worked a number of hours they were supposed to work, they did it?

Norton J. Come:

Yes, Your Honor.

Hugo L. Black:

They produced more than a minimum, more than a what was supposed to be produced and take pay for and that they are being barred from union membership.

Is that the reasonable discipline that’s indicated, or discharged, removed from the membership I don’t mean barred, I mean that would amount for the same —

Norton J. Come:

They were fined as in Allis-Chalmers and the Union has a brought a suit in the Wisconsin Courts, which is pending to collect the fine.

Now I realize that —

Hugo L. Black:

But does that not get down to — I am not saying it does or it doesn’t because frankly I am little concealed, but does that not get down to this that they are required not to produce so much as they can during the time of the work on the penalty that if they do produce as much as they can and they take pay for it that the union can remove them from membership?

Norton J. Come:

Well, I think with this qualification they can produce as much as they want.

Your Honor the way the rule operates is that they can’t — they have, they cannot claim immediate payment.

They have to defer the payment or —

Hugo L. Black:

How do they defer?

Norton J. Come:

By this banking arrangement, which the company cooperates with, the extra production goes into the company’s line of production.

Hugo L. Black:

Why would the company want to do that?

Norton J. Come:

Well, the company did that as a result of bargaining with the union, where the union — the company wanted to eliminate this banking arrangement they weren’t able —

Hugo L. Black:

They wouldn’t make a contract.

Norton J. Come:

They weren’t — that is correct.

The union got a quid pro quo for raising the ceiling and the company got a quid pro quo in that the company agreed to raise the hourly minimum.

The union in turn gave the company a quid pro quo by agreeing to raise the ceiling.

Hugo L. Black:

But isn’t that susceptible of being called an arrangement or whatever it is to induce the employee to hold up his work and not give as much for this job as he should?

Norton J. Come:

But the union could do that Your Honor to the extent of providing, bargaining with the employer for just a straight hourly rate.

Hugo L. Black:

But then there is a question of whether he should be allowed to bargain with the employer that in a way that would force the employer to pay for what my brother here, I think, pointed to , something like featherbedding.

Norton J. Come:

Well, the record does not bear out his contention that there was featherbedding.

Hugo L. Black:

Well, I don’t I’ll — forget that word, it sounds like what as they all, there’s always been a inclination as I understand, it maybe right, part of the union, not to want (Inaudible) they can produce a lot, do a lot in the short term.

In the old days, pick more cotton in the day than your brother, not to want them to do that and get paid for it, but they want to have a organization where they can hold them back and they can take the average man got paid.

Norton J. Come:

But the union could go to the extent as they did with half of the employees in this plant, which are not involved in this case, and put them on a straight hourly rate.

And that —

Hugo L. Black:

But they avoided that, didn’t they, simply by putting it on a piece rate and then accomplishing the same purpose by the —

Norton J. Come:

Well, they weren’t able to get the whole loaf here, but neither was the company, as the President of the company pointed out in some of his testimony in the record, that’s the very essence of collective bargaining.

Hugo L. Black:

Weren’t they really bargaining at all that whether the employee would do all he could and just — what degree of, percentage of his ability he should carry out (Inaudible).

Norton J. Come:

Well, of course the union has to represent the group Your Honor and they have to think of the older workers, maintaining the differentials and things of that sort.

Earl Warren:

We’ll recess now.

[Recess]

Mr. Silard?

John Silard:

Mr. Chief Justice, members of the Court.

Justice Fortas has asked an interesting question whether a union by bylaw could say to the worker, the member violate your contract and if it did so, Justice White suggests the union maybe violating the contract and Justice Fortas asked whether may — the union may not also be violating Section 8(b)(1)?

We say probably, given the case of Homebuilders in the Ninth Circuit which has been read by both sides here, given a case where the union attracts a certain requirement under the contract such as the 8 hour day in an ordinary hourly rate of plan.

And then the next day, they put in bylaw when the contract goes into effect that says notwithstanding, never mind the contract, no member of this union shall work more than seven hours.

We are tempted to say that, that would be a violation of 8(b)(3) by means of fines against a member.

In other words, we take this view that while Congress protected the relationship of the member and the union (Inaudible) from intrusion by the Labor Board, that it is the internal disputes of the kind of Allis-Charmers in this case involved.

If by membership control the union sought to violate the rights of others that the statute protects, for instance the rights of neutrals under 8(b)(4) by requiring a member to go on a secondary boycott picket line which is Bricklayers’ case at page 31 of our brief, we think that goes too far.

That the exemption of Section 8(b)(1) of union discipline as under the board’s scrutiny cannot go so far as to permit the union discipline to becomes a means for violating other rights that the statue protects —

Byron R. White:

Well, the employees here though do have a — are beneficiary to this contract or parties to it and they do have a contractual right against the employer to take advantage of the incentive plan and to be paid and to collect their money then?

John Silard:

And if this were —

Byron R. White:

And when they work and say pay me, the employer must pay them?

John Silard:

Right Your Honor and —

Byron R. White:

And that right the union and this union bylaw certainly interferes with it?

John Silard:

Right, we would know, I wouldn’t say right Your Honor I would say wrong on two accounts.

If this where the case of a union by bylaw requiring a member not to —

Byron R. White:

I understand that —

John Silard:

— live up to his contract, we say that two distinctions in this case and I want to emphasize they’re quite two — quite separate reasons why this bylaw is not of the order of the Homebuilders’ case where the union is asking its member to violate the contract, either rights of the employer under the contract, of the employee under the contract.

The first reason is that they may not doing a fair day’s work even within the ceiling and therefore the employer has never said, and does not now say there is any idleness in this plant by virtue of these ceilings.

The second reason is that even if there were an issue as to a fair day’s work, this employer has contracted for 16 years in consecutive agreements with the union as to the level of the ceiling.

If the ceiling is too low to permit man to do a fair day’s work, the employer is a party to the ceiling, because he has agreed over and over again as to what the ceiling will be.

Byron R. White:

Conceding that though the there still is the fact that the union by law does interfere with the contractual rights of the employee against the employer.

John Silard:

Let us say it this way.

The union —

Byron R. White:

Well I’m not saying it that way.

John Silard:

I will say it infringes upon the contract to that employee, but may I say this Your Honor, Allis-Chalmers did too.

Nothing could more directly infringe upon the right of the unionists in Allis-Chalmers under the contract, than the rule, let’s say you shall not work at all.

John Silard:

So that to say that a union bylaw touches upon an area of employment rights, doesn’t have —

Byron R. White:

That isn’t what I’m saying.

I didn’t attach any consequences to it.

I just wanted to know doesn’t this union bylaw interfere at the point it becomes operative with what the — with an accumulated — with a vested right that the employee has against the employer?

John Silard:

No —

Byron R. White:

He’s worked above the ceiling, he’s entitled to be paid and the — and he can demand the money from the employer and the union says you may not collect it?

John Silard:

No Your Honor, I’d say that if they were contracts, breach of contract suit brought by the employer here to test the question —

Byron R. White:

No, no I don’t suggest there is any breach of contract.

John Silard:

Well, let me forget the contracts.

I would say that under this contract the employer as a matter of successive contracts, in 1953, 1956, 1965 has agreed that this system shall operate as to —

Byron R. White:

Well, this isn’t the point I’m making, you’re just not —

John Silard:

I’m not getting it Your Honor.

Byron R. White:

You are communicating.

John Silard:

I don’t think there is a vested right by a union member in this plant to work over the union ceiling, because we think the employer has agreed that no union member shall —

Byron R. White:

That isn’t what I said.

I said that let’s assume he does work over the ceiling and he earns some money and the employer owes it to him and the union —

John Silard:

Oh he may collect it as a matter of contract right, of course.

Byron R. White:

He may not though, without breaking the union bylaw.

John Silard:

As a matter of fact, he may risk breaking the union bylaw as these gentlemen have done, but as a matter of contractual right, he has a right to collect all that he earned by production and of course —

Byron R. White:

But these union members collected their money and worked over the ceiling, asked the employer to be paid now, they were paid as they were entitled to be, as far as the employer was concerned and the union filed the report?

John Silard:

That’s right.

May I say then to this Court that the ultimate question seems to us to be what is the guiding principal of 8(b)(1) after Allis-Chalmers and Marine Workers.

We say there are two tests to be met in a case of this kind, because we say that Section 8(b)(1) now does not restrict the union from enforcing from discipline a membership rule, not plainly ultra vires, unless the rule invades employer or public rights elsewhere protected in the statue.

Before I get into the law, may I draw this Court’s attention to footnote 5 on page 9 of our brief, because this fair day’s work issue was bargained out between the two sides very recently.

In the middle of footnote 5, on page 9, we have the minutes of the negotiations in 1965 when after contractual negotiations the ceilings were again raised, at the employer’s insistence.

Interestingly, in these minutes the following is reflected.

The union said the ceiling is good for the union and the company, if they remove it, they’d have confusion.

The union said the ceilings are $0.40 to $0.50 per hour above the timing rate, that’s the average rate, which is considered a fair day’s work if maintained.

Todd, that’s the company President, figures that his claims shows that the spread between the timing rate and the ceilings has gradually diminished.

In other words, here are the parties bargaining precisely on this question.

John Silard:

Is this ceiling set at a level where a fair day’s work is no longer being maintained?

The company saying, yes, this is what has happened, the union is saying it hasn’t and they resolved it by increasing the ceilings $0.03 per hour, so that the very issue as to a fair day’s work as against slowdown has been bargained by these parties and the result has been compromised.

We say therefore, the very hard case that Justice Fortas puts of a union rule that requires a man to violate a contract is simply not before this Court, in a double sense that this particular arrangement and existence since 1944 has won acquiescence, acceptance and agreement from the employer as it applies to union members, and that in any event even if it had not won that acquiescence, the scheme as it operates is not a production limiting slowdown scheme, men are doing a fair day’s work under it.

And to say that this is — may I just conclude Your Honor, it’s to say this is featherbedding because a man can’t use the absolute maximum incentive to produce the absolute last piece, just to say that hourly wages as featherbedding, because it’s perfectly clear under hourly wages that five out of six industrial employees in this country are now employed on hourly wages, not on incentive, under hourly wages there is no incentive for the man to work his head off, to work himself to death for earnings, now is that featherbedding?

We don’t think so.

Therefore, to say that a reasonable limit, ceiling on what incentive pay shall be earned is no more featherbedding or slowdown or make work an hourly rate slowdown.

I’m sorry Your Honor, I shouldn’t have interrupted your question.

No that’s all right.

Mr. Silard though, that’s not quite it I think.

You know, because my question to you is whether — let us take a case of a collective bargaining agreement that provides for an eight-hour day.

And then, I posed a question of what be the result if the union sought to enforce a rule, a union rule saying that in those eight hours you might produce only X number of units?

John Silard:

And those units would be less than a fair day’s production, is that you substance?

Well — all right take it both ways.

John Silard:

Well, if it was not less than a fair day’s production, I don’t see that there is any infringement on the employer’s consensual right to perform —

Well in this case we use – what your point is that situation is salvaged, because the company and the union agreed that the ceiling here defines a fair day’s output?

John Silard:

Well, both agreed to the ceiling itself whether it’s fair or not, and because the ceiling is in fact a fair day’s output.

Because of agreement, you don’t want us to go to find that it’s fair day’s output, do you?

You are not asking us to do that, are you?

John Silard:

No, there is no issue in this case that it’s a fair day’s output.

It’s clear that it is a fair day’s output.

Alright.

Now suppose that — take the case that I put to you and let’s suppose that there is an eight-hour day and let’s suppose that the union says that you may produce only five units.

John Silard:

Which is not a fair day’s work.

Now let’s suppose that’s not a fair day’s work —

John Silard:

Oh, we would concede, as in Homebuilders, we do in our brief that you probably have an 8(b)(3) in the sense that as a union rule, assume to some legitimate interest in the promulgating it, nevertheless, if so infringes on the employer’s rights that the union has an obligation to sit down and bargain that rule out with the employer and if it refuses to do so, and in effect changes the conditions of working unilaterally that you would have a violation of at 8(b)(3) and 8(b)(1).

Yes I understand.

Let me give a case number two Mr. Silard.

Let’s suppose that this is a fair average.

The record shows it’s a fair average, but the company says about one half of our men could produce more than this if they weren’t restricted by this arbitrary union rule?

John Silard:

Well, first of all I think that —

What about that?

John Silard:

First of all, the company if it had not contractually agreed to the system could discipline a man who wasn’t producing enough, they could discharge —

So, what you’re really basing this on and let’s — what I want to get clear from you, if this is your point, what you’re really saying is that your case depends upon company and union agreement or acquiescence?

John Silard:

And the fact that even if there hadn’t — never been bargaining between them, there is not anything in this record to suggest that this earnings ceiling is a featherbedding slowdown of not less than fair day’s work rule.

In other words, this is an earning ceiling here not a production ceiling.

There is nothing on the record at all apart from acquiescence that shows that this is some pieces of slowdown rule, which would come under the Homebuilders situation.

It’s an earning ceiling.

I’ve gone as far as I can, I think in my questioning of you, because I wanted to know crisply and shortly whether your position depends upon company agreement or company acquiescence or it’s independent of it?

John Silard:

I think that takes me home, it takes me home, but even if you didn’t have it, this record show nothing of the kind of slowdown or less than a fair day’s work and since all the union tells it’s members don’t collect your pay, doesn’t say don’t do your work, we wouldn’t have an intrusion on the employer’s rights in any event, but we do as Your Honor points out have 18 years of collective bargaining, between the party 16 years and acquiescence.

I want to say one word about the genesis.

Hugo L. Black:

Let me ask just one question and my last one.

If that is not the purpose of such an agreement, what is?

John Silard:

I was about to say Your Honor that the purposes rule is clear in its history.

This rule was adopted in 1944 just before the War Labor Board put incentive rates into effect in most machinery manufacturing and the membership as the bylaw shows got together and said if the War Labor Board puts in incentive rates here, now we in this union have always hated incentive rates.

We think they are a danger, you get the speed up, you get all the men laid off, because everybody is producing more and more and more at the incentive of a higher paycheck at the end of the week.

If that happens here the man said, we’re going to put up on ourselves in this union a restriction, a reasonable restriction that 10% or 20% above this, those rates, is what we’re going to stop drawing our pay, otherwise we’re going to work ourselves out of jobs, work ourselves into a situation in which the older men who’ve been here 20 and 30 years in this company are just going to be outworked by an eager beaver who can do a fantastic performance and with great skill at the capacity of man 18 or 20 years old and the paycheck is then before them to make them do that.

I watch the Super Bowl game the other day and $7500 made each of those young Jet players play very well.

Well that facts that these man working —

William J. Brennan, Jr.:

[Inaudible]

John Silard:

Excuse me?

William J. Brennan, Jr.:

Jet players been [Inaudible]

John Silard:

Well, the incentive was $7500 for the winner and all I’m saying is that the incentive of the extra pay for the one who worked tougher was plenty of incentive for young men to beat the older, the more experienced quarterback.

William J. Brennan, Jr.:

Is that the reason?

John Silard:

Well, I think part of it is the reason.

I hate to say that these are professional football players Your Honor, often it looks like college ball but I think there’s something because of money too and I want to say —

Hugo L. Black:

May I ask you this other question?

John Silard:

Well, the point I’m trying to make [Laughter].

The point I’m trying to make Your Honor is not that — it is precisely this, these man are working day after day, week after week, year after year.

They can’t afford to be playing the Super Bowl every hour they are working live.

It’s just too wearing on these men, particularly it’s the older ones who can’t keep up the skill and by the way this is precision work taking great skill 10,000 of each tolerances.

John Silard:

So to ask a man who is been there 25 years to go home with a half of the paycheck or quarter of the paycheck of somebody else because there’s going to be no limit on incentive, is asking him to work consistently under the tolerance which of the strain of too great a competitive pressure and that’s what this rule is about Justice Black, this is not a slowdown, no —

Hugo L. Black:

If I can interrupt you just one second, I know it bothers you.

But it seems to me you have admitted that, that is the purpose by talking and I don’t mean to say that makes your position wrong by saying that the older men might have to work more than they had to — would have been to work otherwise?

John Silard:

I’m not say Your Honor, they’ll earn half as much as the younger men, that’s —

Hugo L. Black:

All right, that’s when you’re done it protects, I don’t want you to defend that position instead of saying that’s not the reason?

John Silard:

No, I do defend it, I say it’s not right.

To have a man put in a speedup situation which you had in —

Hugo L. Black:

You have to defend it legally.

John Silard:

Well, I defend legally on this basis Your Honor.

We think the National Labor Relation Act Section 8(b)(1) permits a union to have rules not plainly ultra vires, where there is legitimate union interest underlying them.

To say there’s no legitimate union interest in this situation in putting an upper limit on piece rates is really to say there’s no legitimate union interest in the negotiation of hourly wages and yet five out six workers work on hourly wages.

That is the unions have found incentive schemes.

If they’re not retarded or checked by any upper limits, to be corrosive of the internal relationships within the union, to lead to speedups, to layoffs and to demoralization. Now that’s a legitimate union interest.

The Board, the examiner and the Court below all found it to be a legitimate union interest, which goes further I think that Allis-Chalmers required this Court to draw and looking at this union rule from the point of view of its ultra vires side of the rule.

We say a rule which is not plainly ultra vires in the sense that it infringes on some personal civil liberty or right, but within the areas a union’s legitimate judgments about the interests of man.

It’s clearly protected under Section 8(b)(1)(a) from Labor Board intrusion, unless and I want to back to the unless, unless the rule has been used as a means of subverting some other right protected by the Act, such as Section (8)(b)(2), (8)(b)(3) and (8)(b)(4) and I want to point this Court that there’s no proviso to Section (8)(b)(2) or (8)(b)(3) or (8)(b)(4) such a proviso to (8)(b)(1).

And that Marine Workers in our opinion is essentially demonstrative only of the fact that the limits of the exemption Congress afforded to unions to apply non ultra vires rules to their members by membership discipline are reached. When you come to an intrusion by such discipline upon some other person’s protected right under the Act, the neutral under (8)(b)(4), the employer under (8)(b)(3), others under (8)(b)(2).

I see my time is about to expire and I want to make one point to this Court which has been lost track of and that’s the point that we are not here before this Court saying either there is no — we’re not saying this Court, there’s no relief for injustices and arbitrariness in this entire area.

As I said to the Court in Allis-Chalmers, the Common Law Courts have traditionally been available.

This Court in Gonzales said it’s the Common Law Courts that you go, if union rules are arbitrarily applied and you get back in the union if you’re wrongfully thrown out.

The question is this not whether they shall be relieved somewhere because the case has been pending in eight years in Wisconsin and then we just lost it last year, it’s in our brief, on the merits of collecting this fine.

So there’s plenty of remedy in the State Courts, the question is shall the Labor Board get into this thicket, into what Professor Cox called a dismal swamp of (8)(b)(1) litigation of this kind.

We say that the most important reason not to tamper with the congressional decision, in 1947 and 1959 to leave this outside the province of the Labor Board is that the Labor Board has been entrusted with the function of being the principle arbiter between management and union.

Now, if that principle arbitration function is to that function of being the mediator, the man in-between the two contending sides, of in addition by sort of rewriting of 1947 history, the Labor Board now becomes also the policemen of intra-union conduct, then its credibility, its acceptance to play on the union side of this nation’s forces will be impaired.

There’s nobody less well situated to become the policemen of intra-union judgments and disputes of this kind.

One man says I like this union rule, or one says I don’t like it.

No one it seems to us politically wisdom was reflected by Congress when it said it is precisely the Labor Board which is the mediator between the two contending sides which shall not go in there and become the policemen of union discipline and union rules.

We think great political wisdom is reflected in that judgment and that seems to us the paramount reason why this Court should leave the matters and disputes of this kind in the Common Law Courts and precisely why the Labor Board is the last body that Congress would have wanted in, and to never put them into this business but it wanted in just — deciding is a good rule or bad rule or reasonable rule or an unreasonable rule, socially desirable rule or not, do we agree with the majority of 98% of the men at this plant who have always voted for this rule or do we go with four men in this particular case who don’t like the rule.

That’s precisely what was not for the Labor Board and we believe that it best be left where this Court said in Gonzales it wasn’t.

It would left the Common Law Courts where man who was improperly disciplined can get relief and if the rule upon which he has been punished is an arbitrary rule, the common law courts will not enforce it as in Gonzales, they will put it back in the union, if it’s expelled, they will give him back his damages, if he had any damages.

John Silard:

The issue is keeping some clear lines of jurisdiction.

The present lines we submit are right and we comeback there for to the following rule which we need in all respects, a rule not ultra vires, a union rule not plainly ultra vires, does not violate Section 8(b)(1) when it’s enforced by reasonable discipline on the member unless the —

Byron R. White:

Is that because it’s not restrain or coercion or because of the proviso?

John Silard:

This Court said not because, it’s not restrain or coercion.

Now if (Inaudible) didn’t reach the proviso, we would say you get the same result under a fair reading of the proviso which in terms speaks only of membership expulsion, but we speak the same general intention this Court found in 8(b)(1)’s language that this whole area was left by Congress outside of the ambit of the Labor Board’s concern and jurisdiction.

We don’t care while you get there by the restrain or coerce line or the proviso line.

It seems to us —

Byron R. White:

Which route are you taking to get there?

John Silard:

I would say in the case that’s presently before the Court, I’ve always felt the proviso was probably such a clear expression of Congress’ statement that this whole area is left outside the Board ambit and jurisdiction that I would rest on the proviso rather than on a reconstruction or restrain or coerce.

However —

William J. Brennan, Jr.:

Your brief is not couched in those terms?

John Silard:

Our brief necessarily swings between the two points of Allis-Chalmers emphasis which is both under restrain or coerce —

William J. Brennan, Jr.:

Oh!

Mr. Silard.

John Silard:

And on proviso.

Earl Warren:

Very well.

John Silard:

Thank you.

Earl Warren:

Mr. Urdan?

James Urdan:

I’d like to comment first on the last two points made by counsel for the union.

The union position asserts Section 8(b)(1)(a) is violated when you also violate Section 8(b)(2), (3) or (4) or (5) or (6).

We cannot accept this reading of this statute.

8(b)(1)(a) has a purpose of its own and it’s been found to be violated without also involving other sections of Section 8(b).

The suggestion that the employees have a remedy in the common law courts is perhaps generous, but not very helpful.

Wisconsin Courts have said that the union fine is collectable.

They’ve said this on the basis of the Allis-Chalmers decision.

They have also said that even a contrary state policy can’t be enforced.

They say because of the Allis-Chalmers rational we can’t even apply our own Wisconsin law.

We have to permit collection of the fine.

These employees are not going to get much relief from the Wisconsin Supreme Court.

Now the contention is made that this a reasonable rule and I think the record shows that it is not a reasonable rule.

James Urdan:

Employees do not put in a normal working day until the company attempted to impose some restrictions, there was card playing, reading of magazines, it didn’t look like an industrial plant.

The President of the company testified at the hearing that he was ashamed, the President was ashamed to take visitors into the plant after lunch because the man aren’t working.

You get these unreasonable results when you permit unreasonable coercion, that’s precisely why coercion is outlawed by Congress.

When you permit coercion, the union doesn’t have to worry whether it’s a reasonable rule or not.

They just go ahead and enforce it.

The Union says its legitimate interests are involved and certainly there is a legitimate interest in negotiating workloads and matters of this sort, but the question of the legitimate interest includes the method that is used to attain the objective just because it’s a worthy objective would not permit an impermissible method and this method is coercive.

Byron R. White:

Why isn’t that an ample answer to the employer if he really thinks the doing only the machine rate is not a decent day’s work, to suggest that he negotiate a different level of what a satisfactory day’s work is and put it in the collective bargaining agreement with the union?

James Urdan:

This would be the proper way for the employer to proceed.

We don’t have to come here speaking for the employer, we speak for the man who are working under a contract that doesn’t say that.

The contract says they’ll be paid for the work they produce, the union is trying to prevent them from doing that.

You are perfectly correct that the employer has his remedy in collective bargaining.

These employees do not.

Now the union tells us that the rule here is not a production restriction as such.

They cite various text writers who to tell the reasons why incentive pay is objectionable.

These texts are interesting, but that isn’t what the union witnesses said at the hearing.

The union, one of the founders of the union and the man who was intimately involved in the creation of the ceiling testified at the hearing, this is at page 45 of the appendix.

We wanted to see that this labor state keep as many fellows working as we possibly could and we know if we put this thing on there it would provide for at least a few more fellows to stay at work.

And he says the fellows are for this ceiling because it provides jobs.

Then he went on.

He was asked what would happen if they took the ceiling off.

He didn’t say there would be jealousies, he didn’t say the older workers would be prejudiced, he didn’t recite any of these reasons [Inaudible] now advances.

He says, if the ceiling were taken off, it would mean a loss of jobs.

That is what the union was trying to accomplish, having more men at work than were required.

Now the union doesn’t need this power.

This is not like the Allis-Chalmers case where you have no way to prevent a man from going to work during the strike.

In the Allis-Chalmers case there is no contract in existence.

The union has no effective remedy.

They have no way of stopping the man.

Sometimes they tried to stop them physically.

Other than that there is no way to accomplish their objective.

James Urdan:

Well that’s not true here.

Byron R. White:

Yes, but in Allis-Chalmers the employer invites workers back and will take them back and pay them if they come to work, when an employee says I want to come to work, and if he does, and the union fines him.

Do you just — really think that’s different?

James Urdan:

I might say first we certainly don’t agree with the Allis-Chalmers decision.

I think the dissenting opinion makes considerably more sense to us on our side.

Byron R. White:

And further more in Allis-Chalmers if the employee obeyed the rule and stayed away it might very well be, that he wouldn’t have a job, because he might be permanently replaced?

James Urdan:

That’s exactly right and I think this is a great evil of the Allis-Chalmers decision, and a great evil of the union position here that it puts the employee in the middle.

Union brief says, should an employer refuse to produce a fair day’s work under a union pay ceiling the employer is free to discipline or discharge the worker.

Byron R. White:

Yes but given how Allis-Chalmers, what about this case?

Aren’t you really in some difficulty?

James Urdan:

There are two very important distinctions from the Allis-Chalmers case.

The first the purpose of the union rule, what is it that the union is trying to accomplish?

Secondly does the method used by the union confirm with the statutory policy.

In the Allis-Chalmers case, the strike was considered to be so important, the union had no other method other than violence for accomplishing its objective.

Here the union has no such need.

It can accomplish its objective by collective bargaining and that is precisely what the act envisions.

This is how the union should resolve questions of pay and production loads.

Mr. Scofield is not a young man, he is not an eager beaver.

I wish he were here in the court room, so that you might see him.

This man in his 50s.

He does not work harder than other people.

He does not take other than normal breaks.

The only thing he really does that’s any different is to work the full working day.

That’s really all he does different.

For the union to advance these various other justifications for the rule, is really beside the point here.

I think something should be said about the voluntary membership concept.

This is an area where there is a great divergence between theory and practice.

Voluntary membership sounds fine in the law review article.

In the industrial plant the membership is not quite so voluntary hence you might think tremendous pressures of every kind for people to join the union.

And once they are in tremendous pressures to stay in, Mr. Scofield for example attempted to resign in 1959 over this very issue.

James Urdan:

He didn’t like the production ceiling.

He tried to resign.

He turned in his union card.

The union wouldn’t take it.

He was summoned in and there was discussion with I believe 11 members of the union –

William J. Brennan, Jr.:

Is that on the record?

James Urdan:

No it is not.

I am merely trying to illustrate that the voluntary membership question is a matter of a practical problem it should not be approached in any theoretical way.

I think that Congress recognize this.

Legislative hearings brought out this type of problem.

Many people are union members not because they like it but simply because of the pressures in their work situation and furthermore they are required to pay dues to this union whether they want to or not and they are represented by this union whether they want the union or not.

This the law provides, so the voluntariness I think is really not a true characterization of this relationship and that is precisely why Congress extended these benefits to union members, the same as non-members because Congress knew that the member needed this protection, that is precisely what the debate reveals.

I’d like to say one word about the effect of this type of rule or sanction and the democratic process within the union.

The union in formulating its bargaining position ordinarily would have to take cognizance of the views of all the members.

If a — even where a majority has one opinion in a legislative type of body, must also consider the minority opinion and the minority opinions have influence.

Where you have voluntary unionism, where you have voluntary adherence to union rules then the union has some pressure to accommodate competing view points within the union.

When you permit the union to impose fines, you lose that all important element of giving these men a voice in what goes on.

What happens the union leadership can impose the fine, the suppress dissent, they suppress the right of the individual, they don’t have to worry what he thinks anymore, consequently the opinion or the role of these men in establishing the union policy is simply suppressed.

A union member needs protection from his organization just the same as the man in the police station needs protection from the police or the other decisions of this Court which have highlighted the conflict, the difficult position the individual is in when he is faced by what is really an overwhelming organization.

The employee needs protection from coercion.

He needs protection from coercion from the employer.

He needs protection from coercion by his union.

Here the union has coerced him by the fine.

The fine is collectable in court under the law of the state where this occurred, the employee is going to be defenseless against this collection.

His rights under the statute have been infringed and he should be granted relief.