LABOR BOARD v. INSURANCE AGENTS

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Argument of Dominick L. Manoli

Chief Justice Earl Warren: Number 15, National Labor Relations Board, Petitioner versus Insurance Agents International Union.

Mr. Manoli.

Mr. Dominick L. Manoli: May it please the Court.

This case is here on a writ of certiorari for the Court of Appeals for the District of Columbia Circuit.

The National Labor Relations Act imposes upon employers and unions alike the duty to bargain collectively.

The statute defines this duty as the -- as the mutual obligation of both the employer and the representative of the employees to bargain, to meet and confer -- to meet and confer in good faith concerning the terms and conditions of employment and to reduce to writing upon request any agreement which it may arrive.

The respondent union in this case in order to bring pressure to bear upon the employer to yield to its bargaining demands engaged in a program under which the employees remained on the job, group compensation, but refused to perform important functions of their job.

There can be no question I think that by engaging in these activities, the employees expose themselves to discharge without recourse to the protection of the Act.

The question which we have here is whether these tactics -- these tactics are permissible bargaining technique under the Act or whether a union which engages or directs the employees to engage in such activities and such tactics is guilty of a refusal to bargain in good faith within the meaning of the statute.

The facts which give rise to our problem can be summarized quite briefly, the respondent union has, for some years, represented the insurance agents of the Prudential Insurance Company throughout the country.

These agents who number many thousands are engaged in the business of selling insurance for the company and also servicing its policy holders.

Early in 1956, the collective bargaining agreement which covered the terms and conditions of employment of these employees was about to terminate, and as a consequence, the company and the union entered into negotiations for the purpose of arriving at a new agreement to succeed the one which was about to expire.

After approximately two months of negotiations, the company and the union had failed to arrive at an agreement.

And at that time, the union instituted what it called its work without contract program, which I shall describe in a moment.

This program continued at the same time that there negotiations between the company and the union were going on.

It continued for approximately three months and it was called off at the end of the three months when the union informed its membership that it had served its purpose.

And shortly thereafter, the company and the union entered into a collective bargaining agreement.

Now, this -- under this so called work without contract program that the union instituted for the purpose of applying pressure to the company to yield to its demands, the employees refused to write new business.

The writing of new business, new insurance policies is of course an important function of an insurance agent and of course, it's also an important aspect of any insurance company's business.

And during this period, approximately seven weeks in duration, during the period that the employees refused to write new business, the company's business -- new business dropped many millions of dollars.

At the end of approximately two months, the employees resumed -- resumed writing new business but at least some of the agents, however, refused to follow the procedures which the company had adopted for the orderly processing of this business.

Normally, the agents would report new business to what is the applications therefore to their district manager.

But under the work without contract program, the agents sent these reports and applications directly to the home office.

Now, the record does not indicate what the effect of this departure from the procedure was, but I suppose there was -- it may have resulted in some amount of confusion in the handling -- in the handling of these reports and applications.

Now in addition, under this work without contract program, the employees of -- the employees were directed by their union to ignore the company's working rules and other conditions of their employment.

Under this program, the employees -- or let me say this.

Normally, the employees report to their district officers twice a week on Tuesdays and Fridays at 8:30 and normally they leave -- and they report there for purposes of making reports, having conferences, getting instructions and making financial accounts.

And normally, on Tuesdays, they leave at 9:30 and then they go about their business and again on Friday, they leave at about 11:30 and then they go about their business.

But under this program, however, they were instructed by the union not to report on either of these days prior to 10 o'clock.

And then, to sit in the office and do as the union described it, and do what comes naturally, and then they would leave in a body, they would leave at a body at 12 o'clock.

The further aspects of this program which the union conducted also required the employees to disregard conferences which the company would set up.

The company, as part of its training and its sales program, set up -- sets up conferences with the various agents.

And under the program, the employees refused to attend any of these conferences.

And finally -- finally, as part of this program, the employees, at least during certain hours which would normally be regarded as their working time, engaged in mass demonstrations before the various company officers and in picketing and they also distributed -- they also distributed to the company's policy holders petitions for their signature apparently in a move to embarrass the company in which the policy holders would urge the company to sign a fair contract with its district agents.

The union explained the advantages of its program to the -- its membership in this fashion.

During the course of the program, the union wrote to its membership saying that the alternative to the union's program is total strike.

I'm reading from page 105 of the record.

“The alternative to the union's program is total strike or accepting the company's proposals which would do various things.”

And then, that letter goes on to say, “It is inconceivable that any member of the union is willing to advocate any of the alternatives in preference to our program.

While it is true that carrying out the program has its price in sacrifice and inconvenience in the light of the alternatives, the price is small.”

And again, during the course of this program, the union had adverted to another advantage of the program as compared to its -- compared to the conventional strike action.

The union wrote to its membership saying, “You know that the company is unhappy because our membership are able to draw their salaries while continuing the program.”

May I say that during this period of this program was in effect, during which the employees were refusing to perform various important functions of their employment, they were drawing -- they were drawing compensation.

They were even drawing compensation for a new business because the way the insurance company has -- that the insurance business is setup, the compensation of these employees is based upon what they add in their new business, or the collections that they have made during the preceding quarter.

And eventually of course, the loss of commissions with respect to new business would be reflected -- would be reflected in the compensation of these agents.

But otherwise, otherwise they were drawing their normal compensation.

Now, the Board found that the union by instigating this program, these tactics, had refused to bargain in good faith within the meaning of the Act.

The court below relying upon its earlier decision in the Textile Workers Union case which involved similar activities in an industrial plant, exonerated the union.

Now, the critical difference I think between the Board on the one hand and the respondent and the court below on the other comes down I believe to this, the court below as well as the respondent union equates these activities, regard these activities as in the nature of partial strikes and that this is those you can not draw as of the inference of subjective bad faith from the use of a conventional strike, so you can draw none from the use of these tactics in this case.

Now, it is our position that these destructive on the job pressures can not be equated with a strike, that they are inconsistent with the practice and procedures of collective bargaining, which we believe are embedded in the statute.

And that because of that, they constituted a refusal of bargain in good faith within the meaning of the statute.

Now --

Chief Justice Earl Warren: If it had been a strike, there'd been no question here at all, they -- they would have had the right to do that --

Mr. Dominick L. Manoli: No, question Your Honor.

Now, I think analysis of our problem begins with an understanding and with an examination of the practices and procedures of collective bargaining which we think the statute contemplates.

As this Court has observed, the statute has absorbed the philosophy of collective bargaining has worked out in the labor movement in this country.

And that philosophy is incorporated in the statute under the rubric to bargain collectively in good faith.

Now, of course, the duty to bargain collectively in good faith presupposes that the management as well as the representative of the employees will meet and confer in an effort to iron out their differences and to arrive in an agreement through the process of negotiations.

However, Congress realized that the collective bargaining mechanism would not function properly unless they were available to both parties' economic sanctions, because it's fairly obvious that the one party or the other can not either support its own demands with -- with threat of economic sanctions or resist the demands of the other with similar threats that the -- the terms of the collective bargaining agreement will be worked out by the dictate of one party rather than through the process of collective bargaining.

Now, on the employer's side, on the employer's side, the economic sanctions which are available to him are in the final analysis the fact that he controls his business and that he controls the terms and conditions of employment.

Now, on the employee side, on the employee side, their economic sanctions lie in their right to quit work and to go out on strike.

Now, the prospect of a strike, the prospect of a strike plays an important role in the negotiations, because each side operates with an awareness of how far it can go in the -- in the course of the negotiations without bringing on a strike.

And this awareness -- this awareness tempers the relationship and encourages each party that try to arrive in an agreement in terms of -- in the spirit of give and take.

Now if they are unable to arrive with that agreement, then the employees have their traditional and their classic weapon to quit working and to go out on strike.

Now, in this scheme -- in this scheme, the strike -- the strike weapon is an essential part of the collective bargaining process which the statute incorporates.

And this we think -- this we think is the practice and procedure of collective bargaining which is embedded in this statute.

This is evidenced I believe by Section 13 of the statute.

Section 13 of the statute provides that the right to strike shall not be impaired -- shall not be impaired or diminished except as specifically provided in the statute.

Now, in a statute like this one which is designed to encourage industrial peace, it would almost seem like an anomaly to give such special protection to the right to strike.

And yet, in the long run, in the long run, the strike weapon serves the basic policies, the basic purposes of the statute, industrial peace for -- with some pretty glaring exceptions that I'm sure we're all familiar with as today, because in the long run, and generally, in the long run, the cost of the strike is such -- is such that it teaches both sides to compromise their differences.

Now, let me turn to the tactics that were used here.

These tactics in our judgment certainly do not occupy, do not occupy the protected -- the privileged position that the strike does in the statute.

And secondly, they do not serve the functions of -- of carrying out the basic policies of the statute.

These activities are the counterpart of the industrial slowdown, the intermittent work stoppage, which this Court dealt with in the Briggs Stratton and Auto Workers case some years ago.

As the Court observed in that case, activities of this kind do not enjoy the protection that the strike does under the Act.

The employees who are engaged in these activities expose themselves to discharge without recourse to the protection of the statute.

Moreover, although these tactics have not been completely unknown, they have not been regarded as character -- as a characteristic bargaining technique in the American Labor Movement.

Indeed, I may say that they have been described -- they have characterized as the diseases of collective bargaining rather than of its nature as the -- as the conventional strike is.

The -- these tactics we think are no -- are no part of the practice and procedures of collective bargaining which Congress contemplated no part of the practice and procedures on collective bargaining which we think are embedded in this statute.

These -- these tactics they distort -- they distort the play of economic forces that Congress contemplated in order to make the collective bargaining mechanism function properly.

The -- these -- these tactics are designed to -- they're designed to, in the sense -- in the sense to compel the employer to subsidize the employees who are unwilling to strike and yet who are unwilling to perform all of their duties.

Now, of course, from the union's standpoint, from the union's standpoint, this is a very desirable thing.

But it is not the play -- it is not the play of the economic forces which Congress contemplated as -- as essential, as necessary to make the collective bargaining mechanism function properly.

The conventional strike -- the conventional strike puts both parties under some substantial restraint to come to -- to hammer out -- to hammer out an agreement in the spirit of give and take.

But, as this Court has noted that pressures which are generated, the pressures which are generated by these disruptive on-the-job pressures are entirely different.

They permit the employees to stay on the job, to receive compensation in whole or at least in part.

On the other hand, the employer has to operate his business as though it were operating in its normal fashion.

And the consequence is, the tendency -- the tendency is that there would be less compulsion upon the union to settle except upon its own terms.

And this is not collective bargaining.

Justice Hugo L. Black: What do you do with these, their position of the strike in 1947 Act?

Mr. Dominick L. Manoli: The terms -- the term strike includes activities of this kind Your Honor.

But, this position was squarely rejected by this Court in the Briggs-Stratton case or Auto Workers' case and it was rejected on the basis of the 1947 legislative history.

It -- in view of the legislative history, it is inconceivable your -- I submit, and as the Court itself found in that case, it is inconceivable that Congress meant to bring activities of this type within the definition of -- of strike for the purpose -- for the purpose of protecting them under Section 13.

I think that reading the statute with a saving grace of common sense that the reason -- that these were included, these tactics were included within the definition of strikes was not for the purpose of extending to them the protection of the statute, but rather to bring them within the prohibition of the statute of the 1947 Amendments against secondary strike pressures.

Justice John M. Harlan: Could you say that again, I don't fairly understand that?

Mr. Dominick L. Manoli: Yes, sir.

Justice John M. Harlan: I understand you say that Congress described this as a strike.

And you say that the fact that they do this is, not a strike and therefore, it should be held that it means that they are refusing the value of collective bargaining.

Mr. Dominick L. Manoli: That's right.

Justice John M. Harlan: How can it both be a strike and non-strike?

Mr. Dominick L. Manoli: No, Your Honor.

The -- we take the position that this not a strike, although --

Justice John M. Harlan: But I thought you said it came within the definition?

Mr. Dominick L. Manoli: It comes within the literal definition of the term, “strike”.

This type of activity is included within the statutory definition of strike.

But, I am -- and I am saying Your Honor that this argument was rejected by this Court in the Briggs-Stratton case.

That although it is within the statutory definition of the term strike, nevertheless, it was not intended to be -- be within the protection, within the protection of the Act, that the Act extends to strike action.

And the Court held that in view of the legislative history of the 1947 amendments.

Justice John M. Harlan: Where is the Briggs-Stratton here?

Mr. Dominick L. Manoli: Sir?

Justice John M. Harlan: Where is the Briggs-Stratton, which I don't see that you've registered (Inaudible)?

Mr. Dominick L. Manoli: That's the case.

Justice John M. Harlan: Is that the one from which the Court of Appeals quoted?

Mr. Dominick L. Manoli: They relied upon that case, yes Your Honor.

The Court of Appeals relied upon that case.

They relied upon that case for a somewhat different purpose, however, they relied on to -- in support of the position that the -- that the Board was powerless, was powerless to deal with this kind of conduct.

And I --

Justice John M. Harlan: (Inaudible) conduct that you described is not protected by the Act.

Did we say that?

Mr. Dominick L. Manoli: In Briggs-Stratton, this Court held that this conduct was neither protected nor forbidden.

Justice John M. Harlan: Not forbidden?

Mr. Dominick L. Manoli: Not forbidden by -- by the Federal Act --

Justice John M. Harlan: You say -- you say that in common sense, the whole that it is forbidden if you attributed to the fact that they're not bargaining collections.

Mr. Dominick L. Manoli: I am saying Your Honor that -- that Congress included this type of activity within the statutory definition of the strike not to give it any protection under the Act, but rather, to bring it within the prohibition against the inducement of employees to engage in secondary strike pressures, the so called hot cargo provisions, secondary boycott provisions of the 1947 amendments.

That --

Justice John M. Harlan: What you are seem to be saying is Congress described it as a strike, held that -- give limit to the strike in order to forbid it as illegal.

Mr. Dominick L. Manoli: I am saying exactly that, Your Honor.

I am saying exactly that, because it is -- Congress made perfectly clear the 1947 legislative history, as I say, this Court noted in the Briggs-Stratton case, Congress made it perfectly clear that it did not intend, it did not intend to extend the protection of the Act to this kind of activity which the statute accords to the conventional strike weapon.

Justice John M. Harlan: And held that the State could enter that field.

Mr. Dominick L. Manoli: The Court held that, that's right.

I --

Justice John M. Harlan: Now, you say that -- would we have to overrule that case if you're right, because they would invade the -- invade that the use of the National Labor Relations Act.

The State did what this Court held during that case, wasn't it?

Mr. Dominick L. Manoli: Your Honor, I think that with respect to the second phase of that case that the Board is powerless to deal with its conduct.

I believe that this Court itself has gone pretty far towards overruling --

Justice John M. Harlan: (Voice overlap) would resort in with that?

Mr. Dominick L. Manoli: This Court has gone -- yes.

Justice John M. Harlan: Wouldn't we have to -- wouldn't we have to repudiate the case and have --

Mr. Dominick L. Manoli: Yes.

Yes, Your Honor.

The -- I might suggest that only recently, this Court had occasion to mention that case and the Garmon case, where it said that the approach followed in that case has not been generally found, which I take to be a sort of gentle way of -- saying that -- out of their way.

Justice William J. Brennan: A gentle way of doing what?

Mr. Dominick L. Manoli: I think it's a gentle way of overruling the case.

Justice Felix Frankfurter: Gentle?

Gentle or general?

Mr. Dominick L. Manoli: Gentle.

But --

Chief Justice Earl Warren: Is that the Automobile Workers case in 1936?

Mr. Dominick L. Manoli: Yes.

Justice Hugo L. Black: The one you're referring to?

Mr. Dominick L. Manoli: That's right.

Insofar as that case held --

Justice John M. Harlan: Would that be to a state of law?

Mr. Dominick L. Manoli: Pardon me?

Justice John M. Harlan: Would that make the dissent that was written the law?

Mr. Dominick L. Manoli: Not all of it, Your Honor, because the dissent goes farther than we want to go.

[Laughter]

Justice John M. Harlan: You just spoke -- you just spoke insofar, that's it's own ruling.

You told that they can now forbid it.

Mr. Dominick L. Manoli: Well, Your Honor, it's -- I think that the -- if I may say so --

Justice John M. Harlan: Although it was protected by Act.

Mr. Dominick L. Manoli: I think that the first part of that decision with all due respect to the Senators is show good law.

But the part which says that the Board may not deal with this kind of conduct.

I believe that first of all, there's conceivable doubt that's been cast upon the vitality of that part of the decision and in any of that -- in any of that, may I say that the fact that this kind of activity is not specifically prohibited by the statute does not mean that the Board may not reach it.

But the Board may not reach it within a -- within a bargaining context.

Justice Tom C. Clark: But it does mean that when if the Board does reach it, the State's got to let it run.

Mr. Dominick L. Manoli: That's right.

That's right.

Justice Hugo L. Black: (Inaudible) power to enjoin, stop, think of activities and instruct?

Mr. Dominick L. Manoli: Yes.

Justice Hugo L. Black: Did that deal the question of whether there was power enjoined in connection to the unfair labor practice due to failure to bargain collectively?

Mr. Dominick L. Manoli: No, it did not Your Honor.

I think I should also add the Court suggested to me.

The Court did say that the Board was powerless to deal with that conduct.

Now, it did not specifically --

Justice Hugo L. Black: And therefore, the State could.

Mr. Dominick L. Manoli: And therefore the State could.

That's -- that's true.

Justice Hugo L. Black: What you are arguing is that the Board has act, it can act --

Mr. Dominick L. Manoli: That's right.

Justice Hugo L. Black: -- therefore, the State can not.

Mr. Dominick L. Manoli: Conceivably, that State -- the State might have some kind of concurrent jurisdiction in this case here.

I don't know.

Justice Hugo L. Black: Why?

Well, is it exception just because the union does it?

Mr. Dominick L. Manoli: I -- I would -- I don't want -- I am -- the -- the force of my argument is Your Honor that the Board may deal with this kind of conduct and that the State perhaps is powerless to do so.

But -- it may well be -- I don't want to get into the problem -- it may well be that the State may have some sort of concurrent jurisdiction to deal with this thing too.

Justice Hugo L. Black: Which other -- which in -- what other types of cases that you argued where that jurisdiction occurred?

Mr. Dominick L. Manoli: Well, there are cases of violence Your Honor.

This Court has had several cases in the last couple terms that were dealing with violence, Laburnum, Russell, Gonzalez.

Gonzalez didn't involve a violence -- a matter of violence.

But, there are those two cases, the Russel case in which there was violence and the State Court awarded damages and there was also the Laburnum case in which there was some violence.

Chief Justice Earl Warren: Those were damage suits.

Mr. Dominick L. Manoli: Pardon me?

Chief Justice Earl Warren: Those were damage suits.

Mr. Dominick L. Manoli: Damage suits, that's right.

And this Board --

Chief Justice Earl Warren: The Board didn't have any jurisdiction on that, did it?

Mr. Dominick L. Manoli: Oh, yes, it did.

The Board had jurisdiction both over the damage --

Chief Justice Earl Warren: Over damage suits -- oer damage suits?

Mr. Dominick L. Manoli: Oh, no, no.

Over the conduct of practice of an unfair labor practice, cease-and-desist order, not over the damage suit.

Justice Charles E. Whittaker: Is this in your brief?

Mr. Dominick L. Manoli: Yes, sir.

Justice Charles E. Whittaker: (Inaudible) within the Board to -- through action involving maybe they are charged of failure to bargain collectively simply to -- in an unfair practice during an order a union to (Inaudible) tactics of the kind we have here?

Mr. Dominick L. Manoli: With one of these -- the Board has reached this kind of conduct only through the 8 (5) through the refusal of bargain -- unfair labor practice.

That's right, Your Honor.

We have not made it an independent -- an unfair labor practice so the Board has not regarded it as an unfair practice under any other section of the statute other than in a context of a refusal to bargain.

Justice Charles E. Whittaker: Is this not the correction of the rules in Auto Workers case to say that that would be a matter which includes state jurisdiction, except through the means of stopping of this type of unfair practices.

Mr. Dominick L. Manoli: The Court did say that.

Yes, Your Honor.

Chief Justice Earl Warren: So, you ask us to overrule it.

Mr. Dominick L. Manoli: That's -- that's right.

Chief Justice Earl Warren: And we can't reach you without (Inaudible).

Mr. Dominick L. Manoli: That's -- I think it comes to that, Your Honor.

It comes down to that.

Now, Congress has not particularized the duties of bargaining collectively in the statute.

It has left this largely to the Board to infuse meaning and content into the statutory mandate.

In other words, it is for the Board.

It is for the Board to lay the ground rules, to lay the ground rules of collective bargaining consistent with the broader chapters of this statute -- of the statute.

Now, Congress has not specifically prohibit this kind of conduct, but it seems to us that the Board is not, by that token, by that token precluded, precluded from concerning this kind of conduct to determine whether it is consistent, whether it is consistent with the practice and procedures of collective bargaining which I would say we think are embedded in the -- in the statute.

Now, I've already called attention by regard as the significant differences between this type of activity and the conventional strike.

In this type of activity, the employees are not entitled of the protection of the statute.

They just -- these kinds of -- these tactics distort the play of economic forces that Congress intended to have operate in order to make the collective bargaining mechanism work, and finally, they do not accord, they do not accord with the mechanics of collective bargaining which we think Congress had in mind.

But more than this, more than this, there is legislative evidence to indicate that Congress did not intend to compass these tactics as a bargaining -- as a bargaining weapon.

When the 1947 amendments were being considered, the House Bill -- the House Bill had a specific provision which would have made an unfair labor practice of this type of activity.

The House -- the House was dissuaded -- was dissuaded from insisting upon its position only when it was assure that the courts had held that this kind of activity was outside the pail of the protection of the statute.

And that to particularize -- to particularize this kind of conduct as unfair labor practice might have a very limiting effect upon the Board, upon the Board in dealing with this type of activity.

And it was this legislative history which prompted this Court in the Jefferson Broadcasting case to say of tactics like this one here, like these here, that these tactics are repugnant -- repugnant to the basic policies of the Act.

Now, given these factors, given these factors, we think it is not unreasonable for the Board to say that it would be in Congress -- that it would be in Congress to permit these activities as it permits -- as a bargaining -- as a bargaining weapon under the Act.

Now, the argument is made that all that the statute requires is that the parties meet and confer in good faith, and that judged by this test, judged by this test, the negotiations between the company and the union satisfy the statutory obligation.

But we believe that the duty to bargain collectively under the statute involves something more than a sincere desire to reach agreement, that that duty is not discharged, is not satisfied by a mere showing that the parties have met and have sought to compose their differences in a sincere desire to reach agreement.

We think that the duty to bargain collectively under the statute also embraces a duty to refrain from conduct which is inconsistent with -- with what I've called for lack of a better word, with the mechanics of collective bargaining which the statute contemplates.

Justice John M. Harlan: Do you know whether the Board called the attention of the Congress to this -- up and against this?

Mr. Dominick L. Manoli: No, I have not.

Justice John M. Harlan: Is it -- the definition of a strike change?

Mr. Dominick L. Manoli: No, it has not.

Justice John M. Harlan: When did the (Inaudible) makes its decision?

Mr. Dominick L. Manoli: This decision?

Justice John M. Harlan: A decision of this kind.

Mr. Dominick L. Manoli: First case of this kind was in Personal Products case which was decided about four or five years ago, Your Honor.

And that also involved a similar kind of activity as in this case in connection with -- with the bargaining negotiations.

Justice John M. Harlan: When was this Act last amended?

Mr. Dominick L. Manoli: This year.

This year.

This year, the Labor Management Reform Act.

Justice John M. Harlan: Any other amendment -- any other amendment since the Briggs-Stratton rule?

Mr. Dominick L. Manoli: Only with respect to compliance with 9 (f), (g) and (h), Your Honor, because as a result of this Court's decision in the Highland Park decision, Highland Park case had had such serious repercussions that it was felt necessary to give some room in the legislation to meet the problem to which they were created by it.

Justice John M. Harlan: Did the Board file a brief amicus in the Automobile Workers case?

Mr. Dominick L. Manoli: We filed a petition for rehearing, Your Honor.

We did not file a brief amicus before the case was decided, but after the case was decided, a petition for or adoption within the nature of petition for rehearing whether was filed or not I don't recall.

But, that was filed.

Justice William O. Douglas: How does the (Inaudible)?

Mr. Dominick L. Manoli: The Briggs-Stratton case?

Justice William O. Douglas: Yes.

Mr. Dominick L. Manoli: The Briggs-Stratton case opinion is --

Justice William O. Douglas: Did the Board refer to it in its opinion?

Mr. Dominick L. Manoli: The Board referred to it in its -- in its prior decision in the Textile Workers Union case.

In the Textile Workers --

Justice William O. Douglas: But not in this one?

Mr. Dominick L. Manoli: Not in this one, that's right.

But, this case relies in great part upon the Board's decision in the Textile Workers Union's case.

Justice William O. Douglas: I've noticed that you say in a footnote that they disagree with the Court of Appeals in the Textile Workers Union case?

Mr. Dominick L. Manoli: That's right.

The -- in the Textile Workers case, which as I said earlier, involve an industrial plant, the union engaged in so called harassing tactics.

The Board found this to be bad and addressed itself to the problem -- to the problem of -- of the Briggs-Stratton case and sought to distinguish it.

The Court of Appeals can agree with our position in that case.

Now, of course it was in reliance upon its opinion in that case.

But they disagreed with the Board and this one also.

Now, as I said, we think that the duty to bargain collectively embraces something more -- something more than a sincere desire to reach agreement.

That it embraces a duty to refrain from tactics which are inconsistent with the mechanics of collective bargaining.

I think that this is borne out -- that this is borne out by this Court's decision in the Heinz case.

It is also borne out by Section 8 (b) (3) of the statute.

In the Heinz case, which arose under their original Wagner Act, the employer was refusing to memorialize the agreement that he had arrived at with the -- with the union who refused to embody it in a written -- written document.

The Wagner Act, unlike the present statute, did not have a requirement that a collective bargaining agreement be reduced to writing upon party allows other -- the other requested.

This Court held that the employer's refusal to memorialize the agreement regardless of a subjective good or bad faith, that the employer's refusal to memorialize that agreement in a written document constituted a refusal of bargaining in the meaning of the statute.

The Court said that the reduction of agreement to a written form was the final step for the collective bargaining process that Congress had included this final step into statutory collective bargaining obligation and that the employer's refusal to memorialize it -- memorialize the agreement was infringed -- infringed upon the collective bargaining process that the statute has set up.

As similarly in Section 8 (b) (3), I think also have been is a purpose by Congress to do something more than merely to insure a sincere desire to this agreement but named -- but rather to insure an addition -- to insure an addition -- the -- against the impairment of the process by tactics which are normally -- not normally regarded as part of the practice and procedures of collective bargaining.

When Section 8 (b) (3), which makes an unfair labor practice for a union to bargain collectively, was proposed in 1947.

This amendment was opposed on the ground that it was unnecessary, since after all, it was of the unions.

It was the business of unions to -- to engage in collective bargaining and to reach agreement.

Despite this opposition and the alleged superfluity of this amendment, the amendment was enacted and we think it is a fair interest.

It is a fair interest that in passing this amendment, Congress sought to insure something more than a sincere desire on part of unions to reach agreement.

That it sought also to insure as the Wagner Act did it with respect to the employers.

They'd also sought to insure against union action which would tend to impair the process of collective bargaining which the statute contemplates.

Now, the argument is also made that if these tactics -- if these tactics disrupt the play of economic forces that Congress contemplated as essential to make the collective bargaining scheme operate that the employer has a quick remedy in his pocket by which he can readdress the imbalance.

The argument is made that the employer, since these activities are not protected by the statute, that the employer can discharge -- can discharge the employees and thereby in effect force them to go out on a strike.

But, I submit Your Honor that this does not serve the purpose of the statute to compel the employer either to bargain upon the -- under the handicap of this disruptive on-the-job pressures or to force the employees to go out on strike.

After all, the emphasis of the statute is on peaceful collective bargaining and the purpose of the statute is not served -- it is not served if the alternative which the employer has is either to bargain -- is either to bargain under as I say, the handicap of these pressures or to force the employees to go out on strike.

Unknown Speaker: May I ask you what happens to the (Inaudible) this case?

Mr. Dominick L. Manoli: Yes, Your Honor.

We filed petition for certiorari in this Court which was granted.

And after the writ was granted, the Board certified another union as the bargaining representative of the employees of the employer in that case.

The Board's order in that case as in here was directed to the particular union or its successors as long as it was about collective bargaining agent of the employees.

When the Board certified in another representation proceeding certified another union, we called this matter to the attention of this Court indicating that this possibly may have mooted the case but in our view, it did not.

On the basis of that memorandum this Court vacated the writ -- vacated the writ and denied certiorari.

Justice Hugo L. Black: May I ask before you sit down, I understand you to say that this and the effect to which these cases are the only two cases where the Board has had occasionally considered tactics of this kind as bearing under 8 (5) charge?

Mr. Dominick L. Manoli: The other cases which I have in mind Your Honor is one that's reaching the issue in which the employees refused to work overtime -- overtime.

And this was part of a designed pressure upon the employer to deal with its term -- to deal with the union's terms.

And thereto, the Board has held.

The Board has held that this is a refusal of bargaining with the effect.

These are the only two cases that I know of where the Board has gotten into this kind of activity in the context of a union's refusal or --

Justice Hugo L. Black: Well, ordinarily, I assume -- (Inaudible) saying particularly when collective bargaining is a growing up process.

Something of this nature quite frequently developed within the plan.

And the Board I gather yet has this developed in the guidelines?

Mr. Dominick L. Manoli: We have had -- we've had cases involving -- involving under this what I really describe as disruptive on the job practice, but not -- not very often in a bargaining context -- in a bargaining context.

In the petition that we -- in our -- in our petition this case throughout the very end Your Honor will see that we've listed a number of cases where there has been the disruptive on-the-job tactics.

But, only a very few of these cases that have come to the Board have involved its bargaining situation.

They've -- they've had a written part picking on some other kind of context as a device.

As a device for pressuring the employer -- for pressuring the employer -- they are -- in view of the union's demand.

I only know a few cases that the Board has passed.

Justice Felix Frankfurter: This is a matter of interest in what other context?

Mr. Dominick L. Manoli: Or possibly the grievances of one kind or another --

Justice Felix Frankfurter: Justifications I suppose?

Mr. Dominick L. Manoli: Pardon me?

Justice Felix Frankfurter: Justifications by the employer with some dismissal which (Inaudible).

Mr. Dominick L. Manoli: It's -- yes.

Chief Justice Earl Warren: Mr. Groner, you may proceed.

Argument of Isaac N. Groner

Mr. Isaac N. Groner: Mr. Chief Justice may it please Court.

Respondents plead two issues in this case.

The first, whether the Board has the authority under the statute in any case to predicate a finding of refusal to bargain on the type of economic tactic used by a union.

Respondent believes it has no such authority whatsoever.

However, should that question be answered in the affirmative, nevertheless, a second question is reached, whether any such order can be sustained in this case.

Turning first to the problem of law as to whether there is any such authority in any case, I should like at the outset to emphasize what has been conceded here in argument.

Although not conceded by the Board in its decision or apparently in its consideration of the case.

Justice Felix Frankfurter: Mr. Groner, would this disrupt your -- the order of your planned argument if you summarize what you conceive to be the specific facts and finding in this case that you, it is my point of view insisted on this case, just were considered.

I was talking disruptive stoppages to summarize what you conceive to be are the allowable findings in this case of what is done by the union.

Mr. Isaac N. Groner: That's -- just that to what was done by union?

Justice Potter Stewart: Yes, just what was done before you get off to the law.

At least to my way of thinking, that this is part of a question that a judgment on the fact of whether what was done may fairly be said to be inconsistent with an honest desire to bargain.

And I don't want to go off unto the law before I know exactly what was done and what isn't done (Inaudible).

Mr. Isaac N. Groner: Your Honor, the -- to answer that question, we have to specify what the Board did in this case with respect to the fact.

The only fact found by the Board where -- with respect to the activities.

Now, those activities were primarily the not selling of new business.

They included also picketing, they included also late reporting, and they included certain other things.

Now, to understand what that means Your Honor, we feel that one has to know the background of this industry and this employment.

Those facts were not even considered by the Board.

So that my first point to Your Honor is that in this case, there are no facts found by the Board to sustain any such order.

The trial examiner however did consider --

Justice Felix Frankfurter: You're making your challenge to the Board bore down the ground that there are no findings to sustain it?

Mr. Isaac N. Groner: Yes, indeed, Your Honor.

Justice Felix Frankfurter: All right.

Mr. Isaac N. Groner: Well, we challenge to -- to --

Justice Felix Frankfurter: I don't mean that the evidence doesn't warrant the findings but the -- but there is no basis for making a judgment.

That's what no findings means to me.

Mr. Isaac N. Groner: Well, let me -- let me put it as precisely as I can.

We challenge the finding or the conclusion of the Board, because it was based on a per se rationale solely on the finding of fact that certain activities have taken place.

Now, we do quarrel of what some of the findings of fact as to what the activities were.

But, even granting that those activities took place, we say to Your Honor that you can not reach from that solitary finding to a legal conclusion of refusal to bargain.

You have to know what the employment is, you have to know what the industry is, you have to know something about the relative bargaining position of the parties, you have to know something about the history of the particular bargaining, you have to know a myriad of other facts what might enter in to a proper finding of refusal to bargain, none of which the Board considered.

Now --

Justice Felix Frankfurter: But whether or not, there's a refusal to bargain, isn't that question of law in the ordinary sense of a legal doctrine, is it?

If you like to rule against the security that the security is discharged with the principle, it isn't of that order to lead a conclusion.

It's essentially a determination of facts on a particular record.

Did they or did they not in good faith talk across the table with a view of reaching at a conclusion?

I don't call that a legal -- a legal rule or a legal proposition of court.

That the warrant of evidence may make a legal conclusion in any basis of finding.

It's all on these bases of legal conclusion.

This isn't a question of law really, is it?

Mr. Isaac N. Groner: Yes, Your Honor.

It is because --

Justice Felix Frankfurter: I mean, in what sense is it a legal question?

Mr. Isaac N. Groner: It is a legal question because it is a question of law what standard to apply.

You asked in your -- in framing your question, you asked and I think absolutely correctly that you must, it's a question of fact as to whether there -- and I paraphrase -- whether there has been talking across the table a good faith desire to reach agreement.

That is the question of law, whether -- whether that is the appropriate standard.

If that is the appropriate standard, there is nothing further in this case because that is conceded.

There is no dispute.

Justice Felix Frankfurter: Of what?

Mr. Isaac N. Groner: There is no dispute of the genuine and sincere good faith desire of this respondent for -- for agreement.

There is no dispute that it met with the representatives of the company.

That it recognized them, that it discussed the issues involved, that it gave every appearance in the words of the Board counsel at the hearing of give and take bargain.

There's no dispute as to that, whatsoever.

Justice Felix Frankfurter: Is that the -- (Inaudible) maybe whether we argue of course with appearance.

Mr. Isaac N. Groner: Your -- Your Honor, that -- that can not be case either in this case.

I -- I agree with Your Honor in the generality of cases.

I agree 100% with Your Honor.

In this case, however, Your Honor, the Board in its decision, regardless of what is said here this afternoon, the Board in its decision said expressly, it is unnecessary to show that there has been any impact of the so called harassing tactics on the bargaining, so that they were not at all concerned and expressly moved from their consideration the very question you have posed as to whether the reality at the bargaining table was what it seemed to be.

They said, we're not concerned with that.

We don't care whether the tactics over here had any relationship whatsoever to the bargaining over there.

And I say to Your Honor that that means that for all practical purposes, that is a concession, the concession incidentally was made at the hearing, the trial examiner found as a matter of fact that we had bargained in good faith in view of all that.

It is as though the Board had found that we had in fact bargained in good faith but that there can not be good faith bargaining in theory and that its theory was more important from the fact and we say to Your Honors that that is really what has taken place in this case.

There is the, in effect, legislation of a general policy, a general policy expressly rejected by the Congress, legislation of a general policy that engagement in these activities is to be considered a refusal to bargain.

Now, let me --

Justice Felix Frankfurter: Are you going to tell us what actually was done?

Mr. Isaac N. Groner: Certainly, Your Honor.

If -- if I may do that, against the background of -- of let me turn -- let me turn first to the second question.

Assuming that in some case such an order is possible, which we do not concede, is it possible in this case?

Now, as to the realities, this case involves bargaining which took place for a period of some six months.

The parties met on virtually a daily basis.

There is no question as to they're meeting the literal requirements of Section 8 (c) that section that Mr. Manoli first referred to in the opening minutes of his argument and then virtually forgot about.

All this is a matter of stipulation.

The bargaining proceeded from on or about January 16, 1956 to July 17, 1956.

The existing contract expired on March 18.

The existing contract, as a matter of agreement between the parties, had in the no-strike clause expressly barred the union from using not only complete strikes within the word strike, but also mass late reporting, mass refusal to write new business, picketing.

Now, the respondent did not engage in any of these activities during the light of the contract.

This bargaining involved debit agents no other category of employment.

There is no relationship whatsoever or virtually none between the job of a debit agent and that of the factory worker.

The duty of the debit agent is to collect, to sell of new business, to services existing policy holders.

The debit is an assigned territory or a group of policy holders.

Virtually, all of the so-called working time of the agent is out on the field in his own debit.

There is reporting on Tuesday and Friday mornings for a very limited time, as Mr. Manoli indicated, and for a very limited purpose.

The duties are carried out in the field.

That is where the premiums are collected.

That is where the servicing is done.

That is where the new business is sold.

Now, in order to sell new business, for example, you have to talk to the prospect who is generally the head of the family.

In order to collect premiums, you have to come to the home when the money is there and the people are there.

In order to perform this function, therefore, you have to suit the convenience of your client and policy holders.

In other words, there is no set working time.

There is no regular working day.

You do the job at whatever hour is convenient and possible for you to do it.

There is no set prospect of working time.

There is no on-the-job in that sense.

There is no fixed location like a factory.

Each man is out on his own debit, doing his own job, on his own schedule.

And this is conceded as a matter of the undisputed evidence and the undisputed findings of fact by the trial examiner which the Board did not controvert.

Now, the emphasis, in other words, is on results.

In effect, the company doesn't care when the job gets done so long as it gets done.

And that emphasis on result is reflected in the compensation of these agents.

With the exception of a payment of $4.50 a week, everything they get is on a commission basis.

When they did not sell new business, they did not earn any new business commission.

Now, it is true they are under so called quarterly systems so that their actual earnings were thirteen weeks behind the actual performance.

But, they never made up what they lost in terms of not selling business.

In terms of the actual facts of this case, there is no reality whatsoever for saying that there is no pressure upon the employees or upon the union.

The not writing of new business had the same economic impact as a complete strike.

There was nothing earned where there was nothing sold.

There was no compensation where there was performance.

To the extent that there was compensation, there was performance.

To the extent that there was a collection commission earned, there were collections of premiums made.

Now, the nature of this industry is an important consideration particularly to the question of why this respondent did what it did on March 18.

And let met backtrack just for one minute. During the bargaining had developed prior to March 18 that there was one particular issue which brought the parties apart.

And that remained true for the balance of the period after March 18 when the work without a contract program was continued.

That one issue was a demand by the company not by the union.

It was a demand by the company for additional contract language with respect to unilateral rights over a debit, over cutting a debit.

Your Honors will recall that I said that a debit was these employees' territory.

The cutting of debit had the direct impact of cutting the collection commission, of reducing that minimum of job security of assured income, that is the very distinction between the debit agent and other types of insurance agents.

The very point of a debit system, furthermore, is that the agent gets to know the particular people he regularly visits so well that they become his client prospects for new sales, so that both an assured income and a potential prospect, the company was seeking a unilateral right to deprive these agents of fundamental job security so that respondent had before it a most fundamental issue.

So that as of March 18 when the contract expired, and when so far as the agreement of the parties is concerned, the union was free to use any other tactics which had been proscribed in the agreement.

The union was concerned with what way to bring the most effective economic pressure because of this vital issue of a nature of this industry is completely different so far as the impact on the employer is concerned from a ritual of labor.

First of all, if the agents do not collect and no -- and the policy holder does not pay his premium in -- in some other way, the policy will lapse.

If the policy lapses, the company is released from its obligation under the terms of that policy from the duty to pay $10,000 upon death or whatever else that's involved in the particular insurance.

It does not have to return the accumulated premiums which have been paid.

So that as a matter of actual reality, the net effect in this industry, unique among industries, is that a withdrawal of labor completely results in income to the company.

Secondly, there is pressure on the consumer in this industry which is not characteristic of the consumer in any other industry.

Where a physical good is involved and a labor dispute takes place, the consumer either postpones his use or purchase of that good or he gets a substitute.

That is not possible in the case of insurance.

You can not purchase insurance, for example, life insurance at the same price as you purchased it years ago.

The premium has gone up.

Furthermore, because of changes in health, you may not be able to get the insurance at any price.

Moreover, that policy may have accumulated values in terms of loan or extended insurance or cash values which will be sacrificed if the insurance is not maintained.

So that this consumer uniquely -- uniquely in the economic picture has a pressure, direct personal pressure, brought against him to continue his payments to the company.

Now, if that is true, then the company would have in this case received the premiums under the realities of this case and not been obliged to pay the collection commission that our agents not collected it had the policy holders paid it by mail or in some other way and in that way too, the employer would have been ahead financially and have reaped that much of an economic win for.

Those are the realities of this industry of the actual problem confronting this respondent as of March 18, 1956.

All of that is in the record.

None of it is -- was considered by the Board.

The Board approached this --

Justice John M. Harlan: What did the examiner find?

Mr. Isaac N. Groner: I -- I'm --

Justice John M. Harlan: What did the examiner find?

Mr. Isaac N. Groner: The examiner, for example, found that with respect to the writing of new business that the agents received no commission.

He found that the agents did not have to work said hours.

He found that the impact on the employer had not been proved.

And so far as he was concerned as a matter of find -- finding, he found that there had been no impact except for the failure to write new business, that is to say that the collection work and the servicing work continued normally.

Chief Justice Earl Warren: Mr. Chief Justice Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Isaac N. Groner

Chief Justice Earl Warren: Number 15, National Labor Relations Board, Petitioner, versus Insurance Agents International Union.

Mr. Groner, you may continue your arguments.

Mr. Isaac N. Groner: Mr. Chief Justice, may it please the Court.

As of March 18, 1956, the respondent union was faced with this situation.

The bargaining had reached an impact on an issue which posed fundamental issues of job security to its membership.

The previous contract which had a no-strike clause specifying a series of activities barring the union from engaging in them had expired.

The union was faced with the alternative either of capitulating completely to the company on this fundamental issue or of taking some economic pressure action against the company to decide which of these activities specified in the contract was most effective under the circumstances.

Confronting the respondent union with the nature of the employment and the nature of this industry, which I discussed yesterday, which are unique and which pose difficult problems for a union in that, there is direct economic benefit to the company to the employer in a complete strike situation, which there is not in any other industry.

Confronted by this problem, the respondent decided to embark on a work without contract program.

The primary ingredients of this were two.

There were other ingredients the primary ones were two.

One, the refusal to write new business through picketing.

First of all, so far as the new business is concerned, as we noted yesterday, these men are paid on a commission basis entirely so -- so far as new business is concerned, so that the result with respect to the new business was exactly the same as a complete strike.

They received no pay for what they did not do.

Secondly, as to the picketing, there was picketing in front of the company offices two or three days a week, one hour a day.

There was distribution of leaflets during that time.

There was request to the public for support to the distribution of petition.

Now Mr. Manoli found that objectionable, the Board found that objectionable, it did not accord the picketing any special treatment, it indiscriminately lump the picketing together with every one of the other activities under what it regarded as harassing activities per se illegal.

Now I would say to Your Honors that it is an anomaly that picketing should be considered per se illegal.

It is not merely that it would seem obviously to be protected activity under Section 7.

More than that, Section 8 (c) of the Act gives affirmative express recognition to the public expression of views, to the public solicitation of support, and a glance at Section 8 (c) will demonstrate that that Section provides the cause and effect that Congress prohibited the Board, not only from finding any expression of opinion which was not a threat or a promise in unfair labor practice, but also from regarding any such expression even as evidence of unfair labor practice.

Now the nature of the slogans that were used are in the record, it seems conceded by the Board, and it is plain on the face of the record that there was no threat or promise involved in any of the slogans, or placards, or appeals that respondent used.

Justice Felix Frankfurter: Would you mind repeating what you said a minute ago about not utilizing what you called picketing even if evidence of an unfair labor -- not an honest bargaining attitude?

Mr. Isaac N. Groner: Section 8 (c) of the Act, Your Honor, provides in effect that any expression of opinion, which is not a threat or a promise, not only may not be considered an unfair labor practice but may not be taken by the Board even as evidence of unfair labor practice.

It may not be considered by the Board either as an unfair practice itself or as evidence tending --

Justice Felix Frankfurter: (Inaudible)

Mr. Isaac N. Groner: It's in the brief, printed in the opposition brief that we filed, pages 3 to 4, and I shall read it if I may.

These are the congressional words.

“The expressing of any views, argument, or opinion, or the dissemination thereof whether in rented -- written, printed, graphic or visual form shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or a force or promise of benefits.”

Justice Felix Frankfurter: Then you think that that -- it to be construed as making no difference whether such -- such views stand by itself or it's part of conjure of number of factors constituting a basis for judgment by the Board.

Mr. Isaac N. Groner: I believe that the --

Justice Felix Frankfurter: After all -- after all -- despite that -- despite that in another connection, in connection with free speech, the mere -- the mere fact that words they use does not preclude consequences in connection with other things, does it?

Fully apart from the (Inaudible) to promise benefits.

Mr. Isaac N. Groner: No, Your Honor.

In connection other than labor disputes or even in labor disputes, it is a question whether the words used are a signal to some kind of action or that -- that certainly is an indication, might be an indication of unfair labor practice.

Well, I would suggest to Your Honor that the basis of that kind of holding, at least in a picketing situation, is that it is a signal to action rather that an expression of view and no such finding was made in here.

Justice Felix Frankfurter: Well, it is not only that expression of views but it is also something else.

Mr. Isaac N. Groner: Yes indeed.

Justice Felix Frankfurter: It does and (Inaudible) that's an expression of views, that's why the words were used.

What I want to know is whether you make any distinction, in fact your argument does, between the application of 8 (c) where words are used in and of themselves as such without any -- without any combination of circumstances.

Do we just mean that it can be taken into account, although it's a -- although it's part of a general plan in connection with other things?

Mr. Isaac N. Groner: No, You Honor --

Justice Felix Frankfurter: And if the Commission can't, the Board can't find it.

That's your view, isn't it?

Mr. Isaac N. Groner: I -- I would not take so broader view and I need not take so broader view --

Justice Felix Frankfurter: Why not?

Mr. Isaac N. Groner: -- in this case, Your Honor.

Justice Felix Frankfurter: Why not?

Mr. Isaac N. Groner: Because there was no finding by the Board that the picketing was considered of itself to any effect and the --

Justice Felix Frankfurter: I'm not talking about of itself.

The whole point, as I read it on the Board's action, is a combination of things, of things they set forth on page 28 and 29 of the record.

There's a whole enumeration of -- of conduct, of items in conduct.

And my question is whether it makes no difference whether something that is barred from being -- from having legal significance, it denies summation and equally barred if it's part in the -- part of larger conflict.

Mr. Isaac N. Groner: Under the -- under the facts of this record, Your Honor, I would say first of all, that the Board made no such finding in the sense of recognizing that the picketing posed a problem under Section 8 (c) or as free speech or any unique type of problem whatsoever which would suggest at least to me that they saw no distinction that they did not accord any recognition to Section 8 (c).

Had they said we recognized that the picketing is a different activity in its very nature, and so has received special protection from the Congress but under these unique fact circumstances, we think it is an integral part of a total pattern of conduct then we would have a different problem.

Justice Felix Frankfurter: You think the Board must say, we know the law, we are familiar with 8 (c), this is not an 8 (c) case, because it has a lot of concomitant circumstances.

They must spell that out, rather than spelling out what they did and thereby showing, they don't -- they do not disrespect 8 (c).

Mr. Isaac N. Groner: I do not -- I do not see Your Honor, how that shows that they do not disrespect 8 (c).

Justice Felix Frankfurter: Because they coupled it with a lot of other items.

Mr. Isaac N. Groner: Each of the other items to the extent there is a rationale as to why the Board condemned them and I repeat what I indicated --

Justice Felix Frankfurter: They don't condemn -- they don't condemn if it's they -- as they are clear to this, the point of my question, they don't condemn individual items in its content and isolation on individual items.

The problem here is whether they may take all the things they enumerate on page 28 and 29, the paragraph beginning at the bottom of page 28.

Whether they may take all those items in combination and use Justice (Inaudible) suggestions.

You can't break the fagot apart into separate states.

Mr. Isaac N. Groner: Well, I do not see how Your Honor derived that question from this record, because the Board did not accord any separate treatment to any of them.

The Board in the end ordered us not to use all of them.

They did not say, you may not use this so long as they are used combination.

They said, “You may not bargain if you use any of these of weapons including the picketing.”

And in view of that total picture, and in view also Your Honor of the reasoning or rationale, if you can find one of the ultimate Board decision.

I suggest to Your Honor, that however applicable that rationale may be to the other elements, the other activities that the union engaged in.

They are not applicable to the picketing.

For example, assuming and we certainly do not concede and we'll show the invalidity of the assumption, but assuming that unprotected activity could somehow be made into prohibitable activity.

Picketing in and of itself could not be unprotected activity whereas the other activities might or might not be.

Justice Felix Frankfurter: You persist in severing, picketing as a thing in and of itself.

And the problem as I see it is that before the Board is whether they may do what is it contemplates in the concern in the case.

That an isolated act may be lawful, perfectly lawful, but in combination it may constitute a conspiracy in the totality maybe illegal.

Mr. Isaac N. Groner: Your Honor, the question is whether the Board approached it.

The Board actually approached it in its decision as you now do.

I am not passing any comment on what the decision would have been had they approached it as you do now.

I suggest to Your Honor that they did not.

I suggest to Your Honors that they approached this case on a per se basis that they regarded.

Justice Felix Frankfurter: Per se of what?

Mr. Isaac N. Groner: Per se that any act, excuse me Your Honor.

Justice Felix Frankfurter: Per se of what?

They talked about activities and they conclude on the bottom of that paragraph, it cannot be questioned that the foregoing activities, that the whole point of the Board ruling is that this is common and not separate isolated items.

Mr. Isaac N. Groner: You are deriving that conclusion, if I may suggest with all respect Your Honor, from the mere use of the plural by the Board.

I see no evidence whatsoever that the Board so approached it.

I see every evidence that the Board said to itself, "If there is any one activity which we, the Board, regard as harassing, we will per se, from the mere fact that that single activity has taken place reach the conclusion that the union has bargained in bad faith.”

There is nothing in the opinion, I respectfully suggest to Your Honor that indicates that they required two or three or five of ten activities for that conclusion.

I suggest to Your Honor that a fair reading of the record as a whole and a fair reading of the opinion leads to the conclusion that any one activity would have been condemned as illegal and would have been enjoined as the effect of the Board order.

Justice Felix Frankfurter: If you are right, there would be nothing to this case?

Mr. Isaac N. Groner: There is nothing to this case, You Honor.

I am right.

That is what the Board did.

What they did, they did without a color of authority and I do not think that there is any possible justification for it.

I respectfully suggest that there is nothing to this case.

There is nothing in the facts which support this Board order.

There is nothing in the law which could possibly support this Board order.

And I do not welcome the assumption, because I think it's fundamental to this case that merely because the National Labor Relations Board has brought a case here that there must be some semblance of legal plausibility of what it said.

Justice Felix Frankfurter: That is not my assumption, I suppose if anybody.

Mr. Isaac N. Groner: Well, I welcome that because it's certainly not my assumption.

Justice Felix Frankfurter: I'm not entitled to speak for anybody except myself, but I shouldn't think anybody would make so irrational assumption.

Mr. Isaac N. Groner: Further, I suggest that there are a number of facts which I have been reviewing which the Board here completely overlooked, which they would have mentioned had there been any semblance of irrationality in their approach.

They did not mention any of the fact to which I adverted yesterday and they did not mention any of the facts to which I now turn.

Each of these activities, and they did, to some minor extent, change from week to week.

Each of these activities was known to the company under the stipulation of counsel and the finding of fact not contradicted by the trial examiner.

It was known to the company before it took place, so that the company had the opportunity to make its plans on the basis of prior knowledge.

If Your Honors ask me, what is the significance of that fact?

I say to Your Honors, that the Board in its brief suggests that the ability of the employer to plan accordingly is one of the criteria, which distinguish a strike which they would concede as legal from a strike which they would condemn as harassing and therefore per se illegal, so that we have satisfied the criterion which they themselves has put forward in their brief as a criterion for legal activity.

The Board, in its decision -- and there are many differences between the Board decision and the Board brief.

The Board, in its decision, made no reference to this fact whatsoever but relied on a number of two cases particularly which had the element of prior notice absent.

And let me couple before I get to those cases.

Another attribute of this record, not only there was prior notice of the nature of the activity, but it is undisputed on the record and found to the fact by the trial examiner, and not reversed by the Board that the company did know precisely what concession was necessary in order to produce the termination of these activities, so that you have prior notice, you have knowledge of the concession required to bring the activity to an end.

Those are present on this record, they were absent from the record in the Textile Workers case, which was cited by the Board in its decision in this case.

They are absent from the record in the Automobile Workers case, which was cited by the Board and relied out here in the argument as authority at least for the not protected branch of the argument, so that you have those two distinctions which make this case, in effect again, satisfy the criteria used by the Board and yet condemned as per se illegal.

Now there is a -- there is a further fact which distinguishes this case from both of those and that is that both in the Auto Workers court -- case, this Court and in the Textile Workers case, the Board found as a fact that the activities of the union had had substantial economic impact upon the employer.

Now, in his argument here, Mr. Manoli has put that forward as a fact.

He suggested that the company had lost many millions of dollars.

There is no support for that record, not only the Board made no such finding, but the Board expressly declared that such a finding was irrelevant, it declined to make such a finding.

It said that the impact of these activities on the employer was irrelevant.

So that by the prior notice, the knowledge of the employer of the concessions required, the lack of a finding of substantial economic impact, we have clear-cut distinctions in our favor from the cases upon which the Board relied.

Justice Charles E. Whittaker: May I ask you please?

What is your position with respect to Mr. -- to whether of the Briggs-Stratton Auto Workers case stands in the way of Board jurisdiction here?

Mr. Isaac N. Groner: It -- I -- I would agree with Mr. Manoli that that case must be overruled if the judgment below is to be reversed.

I agree with when I take it the concession by Mr. Manoli means that the Auto Workers case is clear and unambiguous holding that the Board has no power or authority to prohibit this activity.

It has no statutory jurisdiction to govern or regulate it in any way.

Justice Charles E. Whittaker: Now may I ask you.

When considered by the Board in connection with a claim of unfairness or refusal to bargain, is the Board then as such attempting to stop or prevent harassing tactics or is it merely saying that such does not comport with the independent duty of bargaining in good faith?

Mr. Isaac N. Groner: Your Honor, the -- the duty to bargain in good faith is not in our view in that sense, independent of the Board's power to find that there has been refusal to bargain.

Now, what I mean by that is this, that the only thing that the Board can do, should it find refusal to bargain, is to issue a cease-and-desist, so that the question, was there bargaining in good faith within the statute, is I would suggest to Your Honor exactly the same as the question, does the Board have the authority to prohibit economic activity under the finding of refusal to bargain.

We would regard it as exactly the same and therefore precluded by the Auto Workers decision.

And I would suggest to Your Honor that the Court reiterated a number of times and we have the citations and quotations at pages 44 and 45 of our brief that this was its holding in Auto Workers.

It said in number of different ways.

The Board has no authority to prohibit or regulate this activity.

Justice Charles E. Whittaker: Now what was that activity?

Did it have to do with a failure to bargain in good faith, in that case?

Mr. Isaac N. Groner: It had to do -- it had to do Your Honor with the obligations of a union to an employer during contract negotiation.

Justice Charles E. Whittaker: But as I understand that case and maybe I do not understand it.

It was a local action to prohibit obstructive harassing conduct under the local law and had nothing to do with the feature of bargaining in good faith, which admittedly would have to be within the exclusive jurisdiction of the National Labor Relations Board, would it?

Mr. Isaac N. Groner: Well, the Auto Workers case arose, Your Honor, in an unfair labor practice context.

That is to say, it was an action by the Wisconsin Board while initiated by procedure similar to the federal board, but in the end an action by the Wisconsin Board, a labor relations board similar, so to speak, to the federal board, and the Wisconsin Board found that there was unfair labor practice and as a result enjoined the activity.

Now it is true Your Honor that the Wisconsin statute does not set up refusal to bargain in bad faith in so many words.

It does, however, describe the activity, that is to say, staying on the premises or reducing production without going on a full strike.

Justice John M. Harlan: What you're saying as I understand your argument is that the Board could not have enjoined this partial strike as such and that since the finding of bargaining was predicated solely upon a strike of this nature, which it could not have enjoined, it derives no greater power by calling it a refusal to bargain, is that it?

Mr. Isaac N. Groner: Yes, Your Honor.

That is it and -- and the -- I was -- perhaps even go a little bit further but that -- that would -- that is our position.

Justice John M. Harlan: Is that the essence of what you're arguing?

Mr. Isaac N. Groner: That is the essence of our position.

I would say even further that the specific activities involved as a question of facts, just to -- to particularize what Your Honor has just stated, that the particular activities involved cannot be distinguished for the purpose of -- of the question whether the Board has the authority to prohibit these activities.

In other words, what the union did actually in its relationships with the employer is similar, so to speak, except for the differences I've just enumerated is similar to what the union did here.

So that the Court, this Court, having these particular activities before it, had the legal issue could the State of Wisconsin enjoin those activities or could it not do so because the right and power to enjoin those activities had been preemptive by the federal board, and that question necessarily and was recognized by the Court as including any and all possible ways by which the federal board could exercise jurisdiction, so in that sense, the refusal to bargain or 8 (c) (2) or anything else was necessarily included.

Justice Felix Frankfurter: Was -- was this question -- I beg your pardon.

Justice John M. Harlan: Excuse me.

Are we going to say -- are we going to say, of course, the authority of the Wisconsin case in light of our recent decisions, I suppose whether that case should come up now, we would have held that there was preemption in the sense that it was for the Board and for instance is to say whether this was within the realm of the protected or prohibited activity.

And to that extent the holding by this Court initially in Wisconsin is a matter of law is a -- is not a very persuasive authority in light of our more recent cases, isn't that true?

Mr. Isaac N. Groner: I would not agree with Your Honor.

Justice John M. Harlan: You would not agree with that?

Mr. Isaac N. Groner: I would agree to this extent that if I -- if I understand.

Justice John M. Harlan: In other words, the Board back in at the time that the Wisconsin case was settled if Garmon, for example or the San Diego case would been a law might have concluded at that time that it did have jurisdiction over this.

And that would be effective in the ultimate determination of this Court as to whether it was entitled to say that or not.

Mr. Isaac N. Groner: Well, I -- I -- let me say, I would agree with Your Honor to the extent that you postulate that the Auto Workers case had not been deiced, if it were wiped off the books and we all pretend that it did not take place, I would agree with Your Honor.

I would suggest to Your Honors that that cannot be -- cannot be done and I would suggest to Your Honor that however the Court arrive at its conclusion in that case, that conclusion is the law and it stands in the way of any contrary decision in this case.

Justice John M. Harlan: Or is that law as determined by this Court without exposing the issue first to the expertise of the Board?

Mr. Isaac N. Groner: That is --

Justice John M. Harlan: The law in that sense.

Mr. Isaac N. Groner: It is the law in that sense.

Justice Potter Stewart: So when was that case decided?

Mr. Isaac N. Groner: It was decided in 1949 or 1948 that winter, the October term 1948.

Justice Potter Stewart: After the enactment of the Taft-Hartley.

Mr. Isaac N. Groner: Oh, yes indeed, and I would emphasize to Your Honors that that case considered the Taft-Hartley Act and indeed made specific reference to the points which were raised yesterday afternoon by Mr. Manoli in terms of the legislative history and the general congressional temper and all those things.

There is specific reference to those factors in the decision.

I would suggest to Your Honors that in the posture of this case that it makes very little difference, because we now have the Board view the cases before the Court.

I would suggest to Your Honors that there was no expertise in this decision, however much or little as might be in other Board's decision, and so that the Court has no reason in any event to reverse what is a clear and unambiguous holding cited by the Board -- by the Court approvingly many times.

Justice Felix Frankfurter: When you say there was no expertise.

What do you mean by that?

Mr. Isaac N. Groner: What I mean by that --

Justice Felix Frankfurter: What you're saying we have here experts.

Mr. Isaac N. Groner: No.

Justice Felix Frankfurter: Whereas the Board by its very existence represents expertise and the Board was created for the purpose of making judgment.

Mr. Isaac N. Groner: There's no doubt about that Your Honor.

Justice Felix Frankfurter: I don't understand what you're saying that in this case, there is no exercise of expertise.

Mr. Isaac N. Groner: What I mean by that is this.

That the statutory intention and the theory of the administrative law at least, as respondent understands it, is that that the expertise involved, is an expertise in the application of difficult facts to establish principles of law.

It is not an expertise in making legislative law by virtue of a preconception, a policy prejudgment as to what is desirable and I --

Justice John M. Harlan: What you're saying, as I understand with this, is they did not do a good job in this Section?

Mr. Isaac N. Groner: Absolutely not, Your Honor.

I am saying that they had no authority to do what they did, that they did precisely what an administrative agency should no do, that they did precisely what Congress prohibited them from doing, that what were trying to do was to enact what Congress had specifically rejected, that is what I am saying.

Justice Felix Frankfurter: But It wouldn't any differences to that argument if they set forth and elaborate well phrased statements of why they have special capacities in view of business that's coming before them and has come before them of finding that this accumulation of argument constitutes is a -- is a manifestation of not bargaining in good faith.

So that -- that wouldn't make a difference of what the answer you've just given to Justice Whittaker.

Mr. Isaac N. Groner: That is right Your Honor.

Justice Felix Frankfurter: So the fact this was an expertise, spelled out as expertise, is immaterial.

Mr. Isaac N. Groner: I regret that Your Honor misunderstood the way I tried to answer your question and I shall try to do it again.

I am not quarrelling nor do I say it is necessary that the Board be expressed and say we are an expert agency, do we have experti -- exercise expertise in this case.

I am saying that they must do so, in fact that in order to decide whether a decision reflects expertise, you read that decision and bring to it reasonable analysis.

And if there is, in fact, no refection of expert knowledge, of expert analysis of the facts, of expert knowledge of the legislative limitations on the authority, then you reach the conclusion that in this case, there was no exercise of expertise, although the Board is an expert agency and although in case after cases it does exercise expertise.

Justice Felix Frankfurter: Lower courts, not even this Court always spells out and define particularities to ground its decision.

But if the Board exist and was created for the purpose of passing judgement on facts in their significance, I still insist that between pages 28 and 29, they've spelled the conclusion -- the basis for their conclusion on the basis of God knows how many cases come before us.

Justice John M. Harlan: Could I pursue that question just a minute?

Assuming that the record can be read and I'm not saying that it can be, as meaning that this slowdown was simply one of the factors that the Board took into account in holding that there was not good faith bargaining.

What would be your position then?

Would that have to be carved out from its determination and then the findings or views in light of the other factors to see whether they were sufficient or could that -- or would your position be that the Board was entitled to consider the partial slowdown as one factor even though it couldn't have acted, it made the finding on the premise that it was the sole factor?

Mr. Isaac N. Groner: I trust Your Honor recognizes that we do not believed that the record --

Justice John M. Harlan: I said that -- I said that assuming that the record --

Mr. Isaac N. Groner: Our -- our position --

Justice John M. Harlan: -- could be viewed that way.

Mr. Isaac N. Groner: Our position would be, and it might depend upon the particular fact circumstances, but our position would be that the Board may not regard a slowdown or the type of economic activity used by a union as evidence of refusal to bargain in bad faith.

We suggest to Your Honor that the boundary of refusal to bargain -- refusal to bargain as set forth in 8 (b) (3) are boundaries which pertain to the genuiness of the desire to reach agreement, are boundaries which are set forth in 8 (d) with respect to meeting and so forth, and we say that the exercise of the economic power has no bearing upon that question, has no more bearing in this case then it would have as the union engaged in a complete strike.

Justice John M. Harlan: In other words, on my hypothesis, you would say that the problem we then have would be to read out of the record, the partial strike activities and then would say whether x those activities there was enough to support the board judgement, is that it?

Mr. Isaac N. Groner: I -- I was -- in getting back to the other question, I would suggest that that depends to some extent on what the Board said it was doing.

Now if the Board made such a view point possible by the nature of its decision, for example, to take -- to take the assumption.

If the Board had said flatly in the case we're assuming, we rely on all these things and if anyone is absent, then we just would not have found an unfair practice, assuming that were as clearly spelled out, then there would be no occasion, I would suggest to Your Honor, for the Court to attempt to carve out any exception, but absent something in the Board decision which would preclude the Court from doing what Your Honor has suggested, I would agree with Your Honor.

And I would say that in this case, there was no such approach, there was in fact expressly the very opposite approach, in this case, there is nothing other that, the economic pressures which the union brought that it is precisely the theory of free collective bargaining that the parties are free to use such pressures, that they may bring substance to economic pressure to bare just as they may refuse to agree to a substantive term or stand on -- on a substantive term, in terms of their ultimate position.

Justice Hugo L. Black: Mr. Groner you said several times Congress rejected, the provision which would have made this stand aside illegal, is that -- where is it in your record, in your brief.

Was it an Amendment or what was it?

Mr. Isaac N. Groner: It was an Amendment Your Honor in the -- in the consideration of what was ultimately Section 8 (b) (4) it appears at page 94 of our brief.

It appears also Your Honor in the petition for reconsideration in the refiled by the Board as amicus in the Auto Workers case, and let me read from that.

We believe, these are the words of the Board.

We believe that the refusal of Congress to define as unfair labor practices all concerted activities which the Board might find unprotected so that you have the --

Justice John M. Harlan: Is that -- is that also cited in your brief?

Mr. Isaac N. Groner: Yes.

That is also cited.

Justice John M. Harlan: What page?

Mr. Isaac N. Groner: I believe at page 85.

It is in the third sentence on page 85 Your Honor.

I cannot find spelled out in the Board decision on pages 28 or 29, any other, any sustainable basis.

The only argument which is plausible on those pages refers to the reasonableness of the conduct, that the parties must approach bargaining with reason their only guide, if that were so, then a complete strike could be outlawed under the rationale brought to this decision by the Board here.

And I suggest to Your Honors that is what is involved in this case.

There is no reasonable distinction expert or otherwise between a complete and partial strike.

If Your Honor sustained the Board decision here, you will be sustaining Board intrusion and collective bargaining on the basis of other -- nothing other than the Board calling something harassing or unfair, these activities were harassing so as the complete strike harassing, they are harassing with the same intention and purpose namely to secure the type of agreements which the union wants.

There is no distinction which can be drawn on this record, none was attempted to be drawn by the Board except perhaps on the unprotected basis.

The Board itself in 1949 appealed for reconsideration of the Auto Workers decision on the protected point, it did not contend then that it had authority under section 8 (b) (3) to reach this activity.

It never has contented that the exercise of economic power can and that alone be made the basis of a finding for refusal to bargain.

In the American Insurance case Your Honor, it spelled out what the requirements of good faith bargaining are.

The summon substance of that requirement is wanting an agreement in good faith, so long as the terms are lawful, so long as the pressures are not otherwise illegal, that is bargaining in good faith.

Justice Charles E. Whittaker: Was this solely enaction by the economic power or a combination of (Inaudible)?

Mr. Isaac N. Groner: That --

Justice Charles E. Whittaker: Suppose, for example, if they (Inaudible) in this office to the injury -- such an injury (Inaudible) legal question then referred, what had the state to enjoined that matter?

Mr. Isaac N. Groner: Violence Your Honor.

Justice Charles E. Whittaker: Yes.

Mr. Isaac N. Groner: Violence --

Justice Charles E. Whittaker: And that's likewise the Board itself (Inaudible) question of refusal to bargain, also has jurisdiction, is that true?

Mr. Isaac N. Groner: No it is not true Your Honor.

It true Your Honor that the Board might enjoin it, it is true Your Honor that violence and violence alone is an exception, it is -- this Court had spelled that out as an exceptional group of cases where concurrent activity by the state and by the Board is permitted.

It is not true, we suggest to Your Honor, that violence could be reach by 8 (b) (3).

Your Honors have set forth in a number of cases by indirect assumption, the Board itself in its petition for rehearing in this Court specified that violence should be reached in Section 8 (b) (1) (a).

I have those pages in my brief.

There is no suggestion that violence could be reached by 8 (b) (3).

That in any event, Your Honor, is not a suggestion of a trace of violence or physical force on this record that is not this case in any event.

Thank you.

Chief Justice Earl Warren: Mr. Manoli.

Argument of Dominick L. Manoli

Mr. Dominick L. Manoli: I have nothing further.