LABOR BOARD v. KATZ

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Argument of Cox

Chief Justice Earl Warren: Number 222, National Labor Relations Board, Petitioner, versus Benny Katz et al.

Mr. Solicitor General.

Mr. Cox: Mr. Chief Justice, may it please the Court.

This is a Labor Board case hereon certiorari to review a judgement of the Court of Appeals for the Second Circuit.

The order of the Board found the respondent guilty of the unfair labor practice of refusing to bargain collectively and of interfering with the employee's rights of self-organization and collective bargaining.

The order directed the respondent to cease-and-desist and also required to bargain with the union as the representative of the employees for reasonable period.

The question presented in this case stated in general terms is whether it violates Section 8 (a) (1) or Section 8 (a) (5) of the National Labor Relations Act, for an employer during negotiations with a labor union chosen as their representative by a majority of the employees to take unilateral action changing the terms and conditions of employment, without notifying or consulting the Union and at a time when it goes with the Union desires to bargain on those subjects.

And takes this action I should add before there was an impasse in the negotiations.

The facts upon which this question is presented were all found by the trial examiner and the Board and were accepted by the Court of Appeals.

Also respondent's brief sets forts quite a different version based on its reading of the evidence.

The findings of the Board I think are supported by substantial evidence and in any event that question is not here.

The employer manufactures metal doors and the frames and I guess the panels, things of that kind in which they are set and admittedly ships its product in interstate commerce.

Among its employees, there was a group of about 50 draftsmen and technicians whom the Board found to be an appropriate bargaining unit.

It's certified a labor union, Local 66 of the American Federation of Technical Engineers as the exclusive representative of the employees in that unit after an election.

There was a delay in starting negotiations because the employers did not of course reply to the Union's levy.

But on the 30th of August, negotiations began.

It's unnecessary to describe the negotiations in any great detail because the Board's findings rested on three specific acts.

It's enough to say I think that there were beginning in August and running on through October and November, for the first part of December, a series of bona fide meetings.

Then there was a long interruption at the suggestion of the New York State Mediation Board and there were a series of additional bargaining meetings beginning in the end of March and running through the end of May when negotiation reached an impasse.

During that time and according to the findings of both the trial examiner and the Board accepted by the Court of Appeals, there was no impasse in the negotiations.

But the employer nevertheless took three steps which were found by the Board to violate Section 8 (a) (1) and (5).

The first related to sick leave.

This employer had had a plan for the benefit of its employees before the Union came, of granting sick leave with pay up to 10 days a year.

If at the end of a calendar year, an employee hadn't used up that sick leave, he could carry it forward into -- into the next year up to a total of 20 accumulated days.

If you had more than 20 days of accumulated sick leave, you began to loose it.

You were paid for 50% of the excess days, but you lost the other 50% so that an employee carried forward say 30 days, he could accumulate 20.

He would be paid for five and he would lose the other five.

On March 11, during a recess in the negotiations, but during the general period in which negotiations were admittedly going forward and there had been no break down.

The respondent made a unilateral change having the sick leave.

It reduced the days of sick leave that could be carried forward.

It did liberalize the -- and it reduced the days of sick leave per year, but it did liberalize up on the amounts of payment for accumulated and unused sick leave.

That's -- that action was taken as I have said without any notice to the Union, without any consultation to the Union and indeed when the Union objected, the employers said there is no need for us to consult for you about this.

We're denying your right to be notified or to be heard.

This was one of the actions which the trail examiner and the Board found to violate Sections 8 (a) (1) and (5).

Second in April, as negotiations were still in progress and according to the findings still before there was any impasse, the employer put into effect somewhat higher wage rates, more favorable wage trades perhaps I should say than had prevailed before, and is true and frequently in paying engineering employees, draftsmen and other technicians.

This company had a rather broad range of wage rate rather typical event might be for an employee to be hired in comparatively untrained and unfamiliar with this employer's need, at the bottom of the scale, say around $55 or $60 a week.

And as he learned the employer's needs, as he demonstrated the skill and was put on more responsible work, he might be increased.

The practice had apparently been to review the status of employees and this unit every six months or so and to grant them increases up to a considerably higher level.

Now what the employer did in April was to guarantee the review of wages at certain periods, was to guarantee certain step increases automatically, all of which were favorable than any offer which had previously been made to the Union.

The trail examiner and Board found that this unilateral action violated the statute and was therefore an unfair labor practice.

The third subject on which unilateral action taken was the so-called merit increases, that is increases given to individual employees within the wage rate.

During October and again in January, this employer gave wage increases, first to roughly 30 and then in January roughly 20 of the employees without consulting the Union, knowing that the Union wished to bargain about the subject.

I would emphasize that these were not just few employees.

The merit increases ran to approximately 50 which were all the employees of the unit and therefore we think amounted very closely to a general wage increase during the negotiations and before an impasse was reached.

The trial examiner found that each of these three instances of unilateral action was a refusal to bargain collectively and was an interference with the rate of the employees to bargain collectively.

He went on and said that these instances of unilateral action demonstrated that the respondent had been marked -- merely going through the motions of collective bargaining without a genuine intention of trying to negotiate an agreement.

And he rejected as I have said the notion that any impasse had been reached prior to May of this year, and held that the Act had been violated.

He went on and recommended an order directing the employer to cease-and-desist from such unilateral action and to bargain with the Union which been while either as a result of the unfair labor practices or otherwise had lost the support of the majority of the employees.

When the matter came before the Board, it approved for the most part the trial examiner's finding.

Specifically, it found that no impasse was reached until sometime in the middle of May after these instances of unilateral action had occurred.

It found that there was no misconduct on the part of the Union which was responsible for the difficulty in the negotiations as had the trial examiner.

And it ruled that the unilateral action was a violation of the Act.

Its finding is differed from those of the trial examiner in that it rejected specifically the trial examiner's finding that the respondent had merely been going through the motions of collective bargaining.

It's said that that finding was not permissible to be made, because the complaint had not been drafted on the theory that the respondent was not acting in good faith.

And it ruled that this conduct was a violation of Section 8 (a) (1) and (5), regardless of the employer's subjective state of mind.

It approved on the basis of its finding the order that had been recommended by the trial examiner.

The essence of the decision below which set aside the Board's order appears in Volume 2 of the record, at page 439.

The Court said, at the top of the page and I think it's worth calling this Court's attention to it, where opinion for unilateral action here complained of occurring as they did during the negotiating of a collective bargaining agreement do not per se constitute a refusal to bargain collectively and per se are not violative of Section 8 (a) (5).

While the subject is not generally free from doubt our conclu -- it is our conclusion that in the posture of this case, a necessary requisite of the Section 8 (a) (5) violation is a finding that the employer failed to bargain in good faith.

Circuit Judge Lumbard, one of the three members of the panel, dissented from this opinion and would in substantial -- to a substantial degree have enforced the Board's order.

Justice Felix Frankfurter: May I -- just going to ask whether you want a full enforcement, you don't -- you disagree with the qualification of Judge Lumbard?

Mr. Cox: Yes.

We want a full enforcement.

But we there find his reasoning is under main issue substantially correct.

We think that the court below is wrong and that it misconceived the essential duties, lay down employers and to a degree labor unions also that was not involved, by Sections 8 (a) (5) and 8 (b) (3) of the National Labor Relations Act.

In our view, the gist of the duty imposed on an employer by those provisions and on a union where the Union's duty to bargain collectively is involved, is to established terms and conditions of employment jointly.

The whole thrust of the statute is an effort to substitute for what had previously been the employer's fight either because he took unilateral action or because of individual bargaining a regime founded on mutual consent.

And any conduct which like unilateral action reject his totalling inconsistent with the notion of substituting a foundation of agreement for the employer's hipsy-dixy in fixing terms and conditions of employment is in our view a violation of the Act.

The fundamental error of the Court of Appeal -- majority of the Court of Appeals I think was in a quite -- in supposing that all duties under Section 8 (a) (5) were determined simply by the employer's good faith by his subjective state of mind.

That's a useful, indeed an essential test in determining whether he is just going through the motions, whether the bargaining is a sham.

But the fact that is important in some instances does not make it the sole touchdown by which to measure the legality of all conduct.

And I shall give the Court in the course of my argument a number of instances in which it is quite plain that the question of good faith is not involved and that an employer or indeed a labor union maybe guilty of a refusal to bargain collectively regardless of its subjective state of mind.

We find support for this position which I have tried to summarize very briefly in the words of the statute, in the philosophy of collective bargaining, which some of the opinions of this Court tell us, has been incorporated into the statute and in the precedent not only of this Court, but of the Court of Appeals and of the Board, which I would -- should've supposed it settled the precise question involved here for at least 20 years.

The words of the statute to which I shall direct myself first, appear conveniently at page 39 of our brief.

Section 8 (a) (5), it shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees subject to the provisions of Section 9 (a), 9 (a) appears over on page 41.

Representatives designated or selected for the purposes of collective bargaining by a majority of the employees in the unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit, for the purposes of collective bargain with respect to rates of pay and so forth.

This principle of majority rule imposes what Justice Stone called certain negative obligation, the negative obligation to refrain from fixing terms and conditions of employment by other methods than through collective bargaining with the majority representative.

Let me interpolate once again that I am speaking of the situation before an impasse is reached.

Once there has been an impasse the duties of the employer and the date of the Union maybe changed.

But there is the negative duty as Chief Justice Stone said to refrain from other conduct inconsistent with collective bargaining that just established by the principle of majority rule.

It's a duty to refrain not only from bargaining with other unions but to refrain from bargaining with individuals and we think quite plainly also a duty to refrain from unilateral action since that attempt to fix terms and conditions of employment by a different method than the statute ordains and describes as exclusive.

In addition, we think that the Section 8 (d) which defines the duty to bargain collectively gives literal support to our view.

Section 8 (d) at the bottom of page 39, for the purposes of this Section to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and conferred good faith with the respect to wages, hours and other terms and conditions of employment.

That -- those words to me at reasonable times in conferring good faith with respect to wages, hours and other terms and conditions of employment applies to each and every subject of collective bargaining.

For example, it is well-settled that for an employer to refuse to bargain about sick leave would be an unfair labor practice even though he was bargaining incomplete good faith about each and every other subject of employment.

It's equally well-settled that to refuse to bargain about bare increases even though the employer is bargaining in good faith about other subjects is an unfair labor practice.

This is well-settled by decisions of this Court and others.

Now, I submit too that it is equally plain that the duty to meet and confer involves meeting and conferring about what might be called temporary terms and conditions of employment.

Supposed for example the Union said, but I think it is arising most naturally in a large establishment, it's going to take us six months before we can workout all the details of a contract.

Meanwhile, we want a temporary sick leave arrangement, something that will operate in the interim.

If the employer said, “No, I won't bargain about the temporary sick leave arrangement to operate in the interim regardless of his good faith in meeting and discussing sick leave to begin six months.”

Hence, I submit that there would be a violation of the statute under the plain words of Section 8 (d).

Now, if you add those two together, the duty to bargain on every subject and the duty to bargain about temporary terms and conditions of employment, it follows by inevitable logic I think that there has been a failure to bargain about sick leave, a failure to bargain about this wage increase and about the merit increases here, because the employer whether had and put something into effect without consulting the Union, which certainly a failure to meet and confirm and when he knew that the Union was seeking to bargain on this subject, there was in effect a refusal in the most literal sense of the word.

Furthermore, I may point out the employer knew perfectly well in this case that he was rejecting the Union's right to participate with respect to the change in sick leave.

When the Union letter -- wrote a letter protesting the change of sick leave in March, the employer replied by a letter dated March 16, 1957, which appears in Volume 1 of the record.

I'm reading from page 270, “We do not feel obligated to explain the matter to you or anyone else since we are not as yet to bound to you until an agreement has been reached between us.

And with the actions that you have used thus far is doubtful when such agreement will be consummated."

Over toward the end of the letter, "There is no need to explain to you what we have done.

We have no obligation to you.”

Well, of course the statute does impose an obligation to consult with the Union about these benefits.

I rested thus far on the words.

We also find support for dispute and perhaps more importance support in the philosophy of collective bargaining.

The philosophy of collective bargaining has always condemned unilateral action for three reasons.

In the first place as I suggested at the outset, the basic postulate of collective bargaining is the right of employees to participate in decisions.

This has been set forth in the literature in the field going back at least to a Dr. William (Inaudible) writing in 1920, when he spoke of collective bargaining as achieving a partnership.

When we have such a partnership, he said, two equal partners then one partner cannot do anything without consulting the other.

This basis was carried on through into the enactment of the statute and one finds, we've quoted some on our brief many expositions of the same period later.

The second reason that the philosophy of collective bargaining has always rejected unilateral action is that unilateral action is inconsistent with the practicalities of collective bargaining.

One can't build a house on shifting sands.

One can't negotiate a contract if the basis, the taking off place is subject to sudden changes without notice to the other side, consider the difficulties of trying to negotiate a pension plan or health and welfare plan covering sickness, accident insurance and the like, if the employer were free following a long night of negotiation suddenly to announce the next morning, well I put a plan into effect and while we'll go on talking, we'll have to start all over again.

Again of course for the employer to take unilateral action, greatly lessens the flexibility of collective bargaining and the employee's opportunities to participate.

If the employer increases his unit labor cost, let's say 5 cents an hour by putting a pension plan into effect that the employee's opportunities to bargain for increase vacations or for higher wages or for some other benefit are necessarily reduced.

True in theory the pension plan may be revoked.

But as a practical matter, one doesn't wipe out, afraid to comply so easily.

Third, unilateral action necessarily disparages the bargaining process and undermines the union.

If the employer advanced the employer when he makes a unilateral change is saying to the employees, “See, this union certification makes no difference.

I'm going out on in conducting myself as before.”

If this happened here with the sick leave, he takes away some of the employee's benefits, this will look and often be an act of reprisal for bringing the union.

If he gives more than he is ever offered the union as happened here in the case of the wage increase in April which exceeded what he had offered the union, he's in effect saying, “See, I will give you more alone than you can obtain and collective bargaining through the union.”

Third, we submit that this question has been decided in the decisions of this Court.

And that they did as I said earlier settled the question many years ago.

The leading cases on the subject are J.I. Case Company and the Medo Photo Supply case.

In the Medo Photo Supply case, there were the employees, it was rather small bargaining unit went directly to the employer after a majority had chosen a bargaining representative and indeed filed a representative who was still acting for them.

And they said, “We would like you to give us directly as employees a wage increase.

And if we get the wage increase, we won't want the union.”

The employer replied after thinking it over, “You can do it what you like about the union, but I'm happy to give you the wage increase.”

In an opinion by Justice Stone, it was held that this was a violation of the Act and I think his words are important enough to impose on the Court by reading a short passage.

That it is a violation of the essential principle of collective bargaining and an infringement of the Act for the employer to disregard the bargaining representative by negotiating with individual employees whether a majority or a minority with respect to wages, hours and working conditions which recognized by this Court in the Case case.

Bargaining carried on by the employer directly with the employees whether a majority or minority who had not revoked their designation of a bargaining issue would be subversive of the mode of collective bargaining which the statute has ordained such conduct is therefor an interference with the rights guaranteed by Section 8 (1) of the Act.

Unilateral action I submit is exactly the same in this respect as bargaining with individual employees.

Indeed, that very question came before the Court in the May Department Stores case.

A case which can be distinguished because it could have gone on the ground that the employer refused even to meet and negotiate with the union.

But he had taken unilateral action and it's significant that the Court dealt with the unilateral action as such, saying employer action to bring about changes in wage scales without consultation and negotiation with the certified representative of its employees cannot we think logically or realistically be distinguished from bargaining with individuals or minorities, and then went on again to interfere -- point out that this interferes with the right of self-organization.

And finally the point was squarely ruled on in the Crompton-Highland Mills case a few years later where an employer had done very much with this employer here did granted a wage increased to the employees when negotiations have gotten difficult.

Indeed, they'd rate something of an impasse in that case which was greater than any increase it had been willing to offer through the union.

Now I said that the basic fallacy of the court below in my judgement was attempting to make the employer's state of mind that the sole test of whether what is complied with Section 8 (a) (1) and 8 (a) (5).

I would like to dwell on that just a moment and to show where it seems to me that this question of subjective good faith is relevant and where it is not relevant.

Section 8 (a) (5) is a short provision.

I also think if the law of collective bargaining is something standing like an inverted pyramid on that various small base because this is a large, complicated body of law and it doesn't reduce itself to one simple touch of it.

I should say that there were at least three groups of problems which it was important to have in mind in aligning of the decisions of this Court.

The first to those cases, cases of the kind that I've been talking about that deal with the status of the union and they established one of the collective bargaining as the exclusive method of fixing terms and conditions of employment upon a foundation of mutual consent.

In this area, the concept of good faith has just no -- or almost no role to play.

The only case I can think of where it comes has any pertinent is where the employer when there's been no election and certification refuses to bargain on the ground that he doubts whether the union has majority.

Then it is said if he's doubt, he's entertained in good faith.

He's not guilty of unfair labor practice even if it happened that the Union had the majority.

But in all other cases, good faith does -- doesn't have anything do with it.

Suppose for example, if the employer as in the May Department Stores case, challenges the Board's determination of the appropriate unit in complete good faith.

That's not a defense if he is wrong.

If the employer refuses to bargain with the union -- with a particular union official on the ground that he's personally objected -- objectionable to the employer, but he's willing to bargain in good faith with other union official.

That has been held to be an unfair labor practice in enforcing the negative duties.

As I suggested earlier, the duty to refrain from bargaining was a minority unit, good faith has nothing to do with it.

In -- if the employer bargains with individuals when there's a majority representative he violates the Act regardless of his good faith otherwise in talking to the union.

Similarly, when one deals with the questions in the area which can be defined by asking a question, what are the required subjects of collective bargain?

As I suggested earlier, the employer, he refuses to bargain on a statutory subject is guilty of a violation of Section 8 (a) (5) regardless of his subjective state of mind.

And indeed in the Borg-Warner case, this Court held that if he insists on bargaining on something outside the statutory subject he violates Section 8 (a) (5) regardless of the good faith in which he carried on the negotiations on the other subject.

So in this area I suggest on the good faith is immaterial.

Now, it becomes important in a class of cases that came to the attention of lower courts into a lesser degree to this Court of very early after the enactment of the Act.

Some employers would meet and confer with the union and negotiate, and negotiate, and negotiate and gradually talk the union to death.

It became important to distinguish the sham from the real.

Now, that is a type of problem in which an inquiry into one subjective state of mind is meaningful and the test to achieve great importance in this area.

The third group of cases arose from what I conceive to be the tendency of the National Labor Relations Board and comparative to the recent years to restrict the substantive position an employer might take on statutory subjects of collective bargain.

Or to attempt to regulate the way he should conduct himself in carrying on the negotiations looking to a joint determination of terms and conditions of employment.

The first of those cases was the American National Insurance Company case where it was held by a majority of the Court that an employer was free in response to a union's request for an arbitration clause to bargain for managements' prerogatives to make certain decisions in the area of collective bargaining for itself.

The Board held -- the Board argued that for the employer to take that position was per se an unfair labor practice.

The Court responded, “No, the Board is not set up to police the substantive positions that an employer may take.”

If it has accepted collective bargaining, if it is negotiating with the Union then the test with respect to its positions is whether it is acting in good faith.

Now, the Insurance Agents case of which the court below seems considerably to have relied on dealt not with the substantive position but with -- if I were to put it bluntly, the weapons that the union might use in attempting to gain its bargaining demand.

And the Court held that the weapons that the Union used weren't -- could not because they were contrary to traditional ways or were -- might be thought against public policy or otherwise undesirable or indefensible on the Board phrase was not a ground for per se branding a refusal to bargain collectively.

The concurring opinion by Mr. Justice Frankfurter, in additioning -- the questioning some of the breadths of the majority opinion emphasizes I take it to point that while this could not be held to be per se a violation of Section 8 (a) (5), the tactics that the Union resorted to, the timing with which it resorted to such tactic might in a proper context lay the foundation for a finding that the union did not have the proper subjective state of mind.

There is nothing in our position here that quarrels in any with that reasoning because --

Justice Potter Stewart: What was the reasoning?

The reasoning of the concurring opinion or of the --

Mr. Cox: Either opinion --

Justice Potter Stewart: -- court?

Mr. Cox: -- both, both.

I was referring to the concurrent opinion.

Justice Potter Stewart: That's what I thought.

Mr. Cox: I don't think it end up a fortiori.

There's no -- nothing here that quarrels to the opinion of the Court.

Justice Potter Stewart: Well, I don't see why it's a fortiori?

Mr. Cox: Well, as long as it's -- as long as we don't quarrel with it and --

Justice Potter Stewart: Alright.

Mr. Cox: -- understand that -- maybe I spoken too quickly.

The point I would make Mr. Justice Stewart about the opinion of the Court, is that the opinion of the Court in the Insurance Agents case took specific note of this problem related it quite profitably to the problem of the bona fide recognition of the union as an equal participant in fixing terms and conditions of employment.

And then in the next sentence the majority opinion says, “An employer's unilateral wage increase during the bargaining processes tends to subvert the union's position as the representative of the employee's in matters of this nature and has hence been condemned as a practice violative of this statutory provision.”

And we think that that statement is amply supported by the earlier decisions of the Court.

I've cited in my brief a wealth of Circuit Court opinions going back into the mid-1940's squarely holding that unilateral action under these circumstances as unfair labor practice.

The Board's own opinions consistently have reached that conclusion for quite a year and we think therefore that the judge --

Justice Potter Stewart: That is the refusal -- they are these decisions all that -- that unilateral action of this kind is a refusal to bargain?

Mr. Cox: It's a refusal to bargain and a violation of Section 8 (a) (1).

Justice Potter Stewart: Both these --

Mr. Cox: Both.

Justice Potter Stewart: -- decisions hold both, is that it?

Mr. Cox: They held both.

Justice Potter Stewart: In each case that it's both, is that it?

Mr. Cox: The only qualification that I need to state to that is that there is some language in the -- I see that in Medo or May Department Stores case which does speak only of 8 (a) (1) but the ensuing concluding finding and the Board's order listed both Section and the Board has always and the Court of Appeals have always treated it as a violation of both.

We would argue just to be clear on the point Justice Stewart that this unilateral wage increase of an amount greater than was offered to the union could also be sustained independently, because whether one is satisfied that this was technically a refusal to bargain, certainly it does disparage the bargaining process, does undermine the Union's position and therefore interferes with the right to bargain collectively under Section 8 (a) (1).

But they've normally been lumped together as violation of both Section.

I'd like to save anytime I have left Mr. Chief Justice.

Chief Justice Earl Warren: You may Mr. Solicitor General.

Mr. Raphael.

Argument of Sidney O. Raphael

Mr. Sidney O. Raphael: Mr. Chief Justice and members of the Court, I think I feel privileged to argue this case especially in the light of the fact that I have an umbilical tie so to speak for this case -- to this case from its very birth.

We go back to the early part of the spring of 1956 just about six years ago when this case had its inception and the demands by the Union, Local 1966 for recognition.

Having had a long experience in the field of Labor Relations and this employer having enjoyed for many, many years a history of bargaining with about seven or eight labor unions collective agreement, we did not resist the petition for recognition and there was a consent election.

There was a certification on the early part of July by the Director of the Second Region and of course as Your Honors know on the summer, people are away on vacation and we did not readily meet, it took a few weeks.

And in the interim, we received a list of demands from the Union that sounded almost as though they were ready to take over the business.

And I think that you will find this in Exhibit 10 which is --

Justice William J. Brennan: Is that unusual?

Mr. Sidney O. Raphael: This is not unusual Judge Brennan.

This happens all the time.

But this -- in this case, I want to point this out particularly because I think they went a little overboard.

They asked for things which I thought meant in the field of Labor Relations, they wanted a home run the first time they were up at-bat.

And we have a lot of experts dealing in this case.

The Union's representatives had a long field, a long background, the employer did, I did and we were all conversant with the fact that this could not be achieved by any stretch of the imagination.

However, it's a usual thing as Your Honors know to ask for all you can get then you bargain it down and perhaps you settle for a lot less.

So then, this Exhibit 10 which appears at pages 263 through 267 of the record, and I want to point out one thing here which is going to become significant in the later portion of my argument.

And that is this --

Justice William J. Brennan: That's in Volume 1 of the record?

Mr. Sidney O. Raphael: Yes, I think it's in Volume 1.

Justice William J. Brennan: It doesn't seem to be right in those pages.

263 through 267, is it?

Mr. Sidney O. Raphael: Yes.

Mr. Sidney O. Raphael: 26 --

Justice William J. Brennan: Yes.

Justice William J. Brennan: -- 3 through 267.

I'm going to advert to something which appears on pages 26 -- on page 265 known as general notes.

Item one, “ No employee shall lose any benefits or suffer any reduction of salary by virtue of the signing an application of agreement.”

From that moment on, we were on the horns of a dilemma for this reason.

The evidence in the case disclosed and this was a rather lengthy trial.

I tried this case before the Board, before trial examiner and the issue was controverted except that I would say with respect to what I am about to tell the Court now, I don't believe there was any controvertible issue and that is that this company like a lot of other prominent companies in its field, without necessity, have to have and it did have a wage and salary cut, with merit reviews, promotions, classifications, etcetera.

This is especially true in the case of professional employee such as engineers, designers, draftsmen, who were within -- who were in this bargaining unit.

You are unable to keep people of that caliber unless there was some sort -- sort of a progression system.

Now, we had this merit review system, we have these demands and the Union says, “Do not take anything away.”

So the minute we do it, we're charged with infringing upon the Union's prerogative.

However, as it's pointed out in Judge Frankfurter's opinion in the Insurance Agents case and then Judge Waterman's decision in the Court of Appeals in our case, an employer was torn between two poles.

He's got to bargain with the Union collectively in good faith.

But by the same token, he's got a business to run and you've got to be realistic, you've got to be practical.

So you're -- you're walking a tight rope which is well-oiled and greased and God know if you fall down.

And this is the posture that we find the basic facts of this case to be framed.

Now, far from the contention which I have heard voiced by -- by the Solicitor General that there might be an inference of sham bargaining.

Your Honors I say to you, this did not happen in this case.

There was long, intensive bargaining and many sessions that went on for a period for about nine months or 10 months.

And every time we met, we lived up to the word of Samuel (Inaudible).

We gave each and -- on each and every occasion more and more until finally in April or May 1957 and this is in the record, we gave the Union improved vacations, improved holidays or 17 and a half dollar package spread over a period of three years.

We gave them progressions.

Well, you mentioned it, we gave it, that was the patent of our so-called sham bargaining.

And the reason I illustrate that is because it is not without reason that the Board refused to go along with the trial examiner's findings and conclusions that there was an absence of good faith or let's put it on another way that there was bad faith in the bargaining by this employer.

With this finding, the Board did not go along.

And it is in this general cradle, in this crucible that we must now draw the line between the former doctrines ever enunciated before the amendment of the Taft-Hartley Act in 1947 and those that follow.

The decision which was cited by the Solicitor General are all decisions that were pre-Taft-Hartley, Medo, all these other cases were pre-Taft-Hartley.

Section 8 (d) which was the subject matter of considerable discussion both in Congress both in the House and in the Senate and which finally there was joint conference report, both agreed.

They wanted to eliminate once and for all the tenuousness of an employer's position when it came to collective bargaining.

In other words, how far did you have to go?

At what point could you say that there was an impasse?

At which point did you give all you could possibly give?

At what point was there good faith or bad faith?

Did you have to come to a collective agreement in order for somebody to say to you, “You're not guilty of bad faith?”

So they enacted Section 8 (d).

So these decisions or these opinions which were referred to by the petitioner are in acts and as Judge Frankfurter roughly pointed out in his concurring opinion in the Insurance Agents case, there was a distinction between those cases which preceded and those which followed the amendment to the Taft-Hartley law, Section 8 (d).

That leads us now to the principle facet of this case, because if we conclude as I believe we should in the face of the present decisions and the amendment of the Act Section 8 (d) then there is justification for Judge Waterman's decision, because then we cannot isolate and fractionate some -- what I would call de minimis because these little violations that were committed on this case and the overall posture of all the facts was in the nature of de minimis violations, that's exactly what it was.

They were clinging to a straw in order to sustain these charges because despite what they say that we changed the sick leave and I'll assume arguendo that we did, and I might say that we did because the record abounds with evidence that this was not a change that diminished anything.

This was a change to prevent the constant abuses which we had not only with the professional employees but with our white collar personnel and they numbered into the hundreds.

They were simply misusing the privilege that we gave them.

So we didn't take anything away, but we added an incentive to what they had in order to avoid the continuance of this general bad relation which we had.

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

Print this transcript Transcript: 

Argument of Sidney O. Raphael

Chief Justice Earl Warren: Mr. Raphael, you may continue your argument.

Mr. Sidney O. Raphael: Thank you Your Honor.

I'd like to pick up the thread of my argument shortly before we -- Your Honor declared a recess.

Somewhere around April of 1957 after we had gone through 12 hectic bargaining sessions over a period of time, we found ourselves in the position of where we were vacillating between individual collective bargaining, industry wide collective bargaining.

And frankly, I don't think anybody, you, neither the State Mediation Border or the Union or those people who were sitting in as a group in these negotiations in what thing we were bargaining.

I think everybody recognized though that an industry-wide pattern would have been the more preferable method of evolving a collective bargaining agreement because it would've established uniform conditions.

And that was --

Justice Potter Stewart: This is a metal fabricating industry.

Mr. Sidney O. Raphael: This is metal fabricating Your Honor.

Justice Potter Stewart: Localized in any area or is it all over the (Voice Overlap) --

Mr. Sidney O. Raphael: No, it's Pennsylvania, New York and New Jersey principally.

Justice Potter Stewart: Primarily there.

Mr. Sidney O. Raphael: And our members have rather substantial plants in all of these three states.

And what we were trying to achieve is a uniformity of conditions.

And I think the Union went along with that, shall we say sub-consciously, although not voicing it in those words.

Now, the reference has been made in the argument of the petition.

It might have been availed inference that there was a sham bargaining.

Again, I want to repeat that the risk of -- perhaps being redundant that we have real genuine, sincere bargaining and rather lengthy and hectic sessions that resolved many issues and resulted in a wage pattern which meant perhaps over a million dollars as far as our members will consign for a period of a three-year agreement.

Now, when we got down to about the middle of May and the situation became very acute because a strike had been declared against one of the members of the association.

And there was general chaos and disruption among the workers which we contended on the record was generated and inspired by the Union's representatives.

When that situation eventuate, we at that time said to the Union, “Look, if we cannot agree amicably on what constitutes the format of a collective agreement, let us give this thing to the American Arbitration Association for them, for an arbitrator or a panel of arbitrators to be chosen who have the expertise in dealing with these problems and we are agreeable to be bound by their award.”

Well, surprisingly, the Union refused to go along.

And with the result that the -- there was a complete impasse at that time.

The Union wrote us a letter, we wrote the Union a letter and for a period of two months, we heard nothing from the Union at all.

So that following May the 17th, which is a local date, somewhere at the beginning of July and just about the time when the certification year was to expire, the employees were then the collective bargaining unit, sua sponte disowned the Union, notified us that they were no longer interested in having the union bargain for them collectively.

But even before this impasse resulted in May of 1957, we had another curious situation which brought about an impasse and that was this.

While we were engaged in this overall industry-wide bargaining the Union went and they used the divide and conquer procedure which they have a perfect right to do.

It's -- all is fair in an economic war, we agree to that.

And they went and obtained a collective agreement from the largest employer in the industry operating a plant in Pottsville, Pennsylvania.

And in this agreement, a clause was written which stated, “No other employee shall be accorded times and conditions more favorable than those that are prescribed in this contract.”

And that was sometime of the early part of January of 1957 so that when we met with the Union's representatives the next time, we were met head on with the statement by the Union that we would have to conform with the times and conditions of this atmosphere contract.

Chief Justice Earl Warren: Mr. Raphael, may I ask this -- this question, do we have to review all these facts to decide this case or do we just have to decide whether -- whether the -- the Board has a right to make such a -- an order without finding that the company intended to recruit bargaining?

Mr. Sidney O. Raphael: Well, I believe that and if we're to follow --

Chief Justice Earl Warren: (Voice Overlap) -- if we don't have to follow -- if we don't have to review all these facts, it seems to me, we ask the very narrow question of law, does we?

Mr. Sidney O. Raphael: Well, no.

I would like to -- I would like to agree with you that it is a narrow question.

I realized that I don't -- nobody would like to overburden the Court.

But unfortunately, in the light of the decisions especially the Insurance Agents case, I think that the factual content of the case with respect to the good or bad faith bargaining becomes very crucial if we ought to sustain the corollary findings under 8 (a) (5) and 8 (a) (1).

Chief Justice Earl Warren: What did the -- what did the Court of Appeals do with the findings of the Board?

Does it disagree with the factual findings of the -- of the Board?

Mr. Sidney O. Raphael: Well, they didn't disagree with the factual findings but they had reservations about them.

But, it is my opinion that since the Court was determined by majority opinion to send the case back to the Board on a mandate, to educe additional evidence with respect to the good or the bad faith finding, I think that in effect eventually would resolve the issue.

Because if we went back to the Board and we have to determine the good faith of the employer, additional evidence would have to be educed.

And this additional evidence would in turn supplement the evidence already adduced and then the Board would have to say, “Well, we feel that the overall bargaining tactics of this employer were fair, that perhaps he did go often the left field a little bit here and there but it wasn't that serious and it didn't amount to that much that we have to make an overall finding of failure to bargain.”

Chief Justice Earl Warren: Well, if the court below is right though, we don't have to review all these facts, do we?

If the court below is right from --

Mr. Sidney O. Raphael: If the court --

Chief Justice Earl Warren: -- on the law, then it would in fact goes back --

Mr. Sidney O. Raphael: If the fact -- if you agree with the threshold question, that's it.

Chief Justice Earl Warren: Yes, alright.

Now if we don't -- if we don't agree with it, isn't it a just question of law then?

Mr. Sidney O. Raphael: No, I feel that you --

Chief Justice Earl Warren: If it -- if it needn't be subjective but only objective wouldn't that be the issue?

Mr. Sidney O. Raphael: Well, I -- I -- I think that the issue on the cases whether or not the case on the totality, we go back to the Universal Camera case.

In other words, on the basis of the overall evidence on the case, we contend that there has not been substantial evidence to make an overall finding in this case.

Justice Hugo L. Black: Although a finding of (Inaudible) --

Mr. Sidney O. Raphael: A finding --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Sidney O. Raphael: A finding --

Justice Hugo L. Black: -- is a finding of what?

Mr. Sidney O. Raphael: A finding of failure to bargain in good faith.

Chief Justice Earl Warren: Well -- what --

Mr. Sidney O. Raphael: That would be 8 (a) (5).

Chief Justice Earl Warren: Well what -- what question that do you -- do you raise here on your -- how do you state the question?

Mr. Sidney O. Raphael: Well -- question number one Judge Warren, whether on the context of the continuing impasse and an ultimate breakdown of negotiations both caused by Union and employer violates Section 8 (a) (1) and (5) etcetera, by following its longest established standard practices known and discussed with the Union.

That's a factual question.

Chief Justice Earl Warren: Yes, but the question presented in the petition, the one on which you granted cert is this, whether there is a violation to Section 8 (a) (5) and (1) of the National Labor Relations Board when prior to the discontinuance of collective bargaining negotiations in the existence of an -- of a possible -- any possible impasse, an employer without notice to or consultation with the employees' bargaining representative unilaterally places in effect new wage rates substantial in excess of those offering.

The representatives changes the sick leave policy and grants numerous merit increases.

Mr. Sidney O. Raphael: We know that Judge but we say we didn't do those things.

Chief Justice Earl Warren: I beg your pardon?

Mr. Sidney O. Raphael: We say we didn't do those things and we say that the records sustain our position.

Chief Justice Earl Warren: Well, you object then to the findings of the Board and the -- and the findings of the --

Mr. Sidney O. Raphael: That's right.

Chief Justice Earl Warren: -- Court of Appeals, this --

Mr. Sidney O. Raphael: We don't object to the findings of the Court of Appeals if -- I say again if that -- if the threshold question is resolved, we don't have to come to the other question.

Chief Justice Earl Warren: Yes, but where does -- where does the Court of Appeals designate it with the findings -- the factual findings of the Board.

Mr. Sidney O. Raphael: Well, the Court of Appeals disagrees with the factual findings of the Board in the respect that they don't come to the conclusion on the basis of the good faith section of the amended act that we, on an overall basis, violated anything and they send back to the Board the determination of that question.

So apparently, the Court did not come to any conclusion.

It would appear that way to me.

Now, I want to get down to the question of the matter of whether or not the determination on the issue of violation of 8 (a) (1) and 8 (a) (5) can be made on a basis of per se violations or must it be in the totality of all of the conduct of the employer.

I'd like to point out and we have referred to this in our brief on pages 20 and 21 that only recently in an address by a member of the National Labor Relations Board, Gerald Brown, I think it was at Duke University, he agreed that the Board should now determine cases not on a per se basis but on the basis of the formula enunciated in the opinion of Mr. Justice Frankfurter in the Insurance Agents case.

Now, this is a member of the National Labor Relations Board making a speech of very, very recent vintage.

And I say that this contrary to the statements of the Solicitor, he does not speak for his client.

His client has spoken completely at odds with him.

Justice Felix Frankfurter: And there's one member of the Board who speaks for his -- for the Board?

Mr. Sidney O. Raphael: Well --

Justice Felix Frankfurter: -- one member would speak -- speak for the Board?

Mr. Sidney O. Raphael: He's -- he might and for --

Justice Felix Frankfurter: I'm asking (Inaudible) --

Mr. Sidney O. Raphael: Well, he might -- he says that this is the policy the Board should pursue and he's a member of the Board, Judge Frankfurter and I think that this should carry considerable weight in -- in indicating the present day thinking as of this moment that they do know longer adhere to the old view before the amendment of the Act to the per se violation but they are rather now dealing on the basis of a totality of the record.

Now, we have referred to his -- we have quoted some of these comments where he says on page 21 and we have highlighted that.

Justice Felix Frankfurter: Where is the full text of the speech to be found in this?

Mr. Sidney O. Raphael: I think the Solicitor General has the full text.

It seemed --

Justice Felix Frankfurter: I just wanted the citation.

I didn't want for you --

Mr. Sidney O. Raphael: Oh --

Justice Felix Frankfurter: I'd be glad to have the facts in this.

Argument of Cox

Mr. Cox: What's the sect -- section?

I don't think it's -- I don't think it's fully printed.

We'll get other copies for the Court if it wishes.

And I've just handed one with the marshal.

Rebuttal of Sidney O. Raphael

Mr. Sidney O. Raphael: I want to refer to some of the --

Justice Felix Frankfurter: (Inaudible)

Mr. Sidney O. Raphael: I beg your --

Justice Felix Frankfurter: Pardon me for interrupting.

Was this -- or was this released by the Board or by the speaker or in fact some -- is that a case the other day which involved knowing what -- who speaks to whom?

Rebuttal of Cox

Mr. Cox: Well, it was up without (Inaudible).

I believe that this is put out by the Board's press relations office as they speak through a single member.

Mechanically, it emanates from the Board's headquarters that each individual speaks for himself.

Justice Felix Frankfurter: I can read it without being a part of the (Inaudible) the NLRB on the new frontier that -- that's not a technical term, is it?

Mr. Cox: I take it a joke.

My association does not permeate the doctrine of the Court.

Rebuttal of Sidney O. Raphael

Mr. Sidney O. Raphael: May I proceed?

Chief Justice Earl Warren: You may continue Mr. Raphael.

Mr. Sidney O. Raphael: I would like to refer to some of the state -- some of the con -- cases as cited by the Solicitor in the argument.

And he cites for instance the Borg-Warner case.

I think Judge Frankfurter in his opinion in the Insurance Agents case on page 509 distinguished the Borg-Warner case in pointing out that in Borg-Warner --

Justice William J. Brennan: Mr. Raphael, is there any -- nothing about the Court opinion in the Insurance Agents that has a bearing on the problems here, is it only the concurring opinion on which it would consult?

Mr. Sidney O. Raphael: Oh no, I'm not -- I'm just referring to certain sections of it.

But I know Your Honor wrote the opinion on the case on that.

Justice William J. Brennan: It's not important if I wrote it.

Mr. Sidney O. Raphael: I'm not saying this by way of --

Justice Felix Frankfurter: Anything.

Justice William J. Brennan: Not suggesting you are but I'm just wondering if the court below as I understood it relied on Insurance Agents and that is the Court opinion.

Mr. Sidney O. Raphael: Yes.

They did Your Honor.

Justice William J. Brennan: But you're relying on the concurring opinion.

Mr. Sidney O. Raphael: No, I'm not relying on the concurring opinion.

I'm quoting from the concurring opinion.

Justice Hugo L. Black: What's the object in it?

I thought I agreed to the court opinion.

I didn't know that --

Mr. Sidney O. Raphael: Well, I -- I think -- I think if I may say so, the concurring opinion went a little further in elucidating on what the affect of the amendment of Section 8 (d) was and its application to present day collective bargaining.

And it's only in that posture that I want to refer.

I'm not by -- I know that the decision itself.

Your opinion Judge Brennan spoke about Section 8 (d) and that the amendment, the effect of it.

But I think in the concurrent opinion, it was a little more elucidation on the subject and that was the only reason that I made reference.

Justice Hugo L. Black: Do you mean, elucidated the court opinion?

Mr. Sidney O. Raphael: It elucidated the court opinion.

Justice Felix Frankfurter: Isn't that a rule?

Justice William J. Brennan: That is new.

Justice Felix Frankfurter: (Inaudible)

Justice William J. Brennan: Maybe the court opinion didn't use it because they don't think its -- if it was irrelevant.

Mr. Sidney O. Raphael: You don't want me to act as a judge, do you?

Justice Felix Frankfurter: We've got a rule against referring to a concurring opinion, have we?

Mr. Sidney O. Raphael: Not that I know off Judge Frankfurter.

Justice Felix Frankfurter: Only, you do refer to the dissenting opinion but concurring opinion have a lower status.

Mr. Sidney O. Raphael: I would like in connection with --

Justice Felix Frankfurter: Its shorter (Inaudible)--

Mr. Sidney O. Raphael: The further argument of Mr. -- of Solicitor General point to the fact that --

Justice William J. Brennan: Well you know you're not alone Mr. Raphael.

The Solicitor General thought that the concurring opinion was particularly helped pursuant to.

Mr. Sidney O. Raphael: Well, in other words, I'm in agreement with the Solicitor General.

Justice William J. Brennan: Apparently that was the question asked.

Mr. Sidney O. Raphael: I would like to point out to the Court that in the opinion of Judge Waterman and the Court of Appeals on page 707, he refers or rather he quotes from an article written by the Solicitor General entitled Duty to Bargain in Good Faith, 71 Harvard Law Review 1401, 1424 and --

Justice William J. Brennan: You'd like the speech of --

Mr. Sidney O. Raphael: Like General Brown.

Justice William J. Brennan: -- the members of the Board the same idea?

Mr. Sidney O. Raphael: Yes.

Now, I -- I sincerely feel that in the light of the amendment, Section 8 (d) and specifically considering the fact that the Board refused to go along with the trail examiner on the good faith issue that I think it was perfectly proper and appropriate in order to have a complete record with complete findings of fact and conclusions of law which I think this record was devoid off in the light of Section 8 (d) for the Court to have issued its mandate in sending the case back to the Board for the adoption of further evidence.

And in the phase of that, I think that Your Honors should affirm the order of the court below.

I thank you very much for the time you've given me.

Chief Justice Earl Warren: Mr. Raphael.

Mr. Solicitor General.

Rebuttal of Cox

Mr. Cox: I don't think any extended reply is necessary Mr. Chief Justice.

I would just say one word to make our position clear about some of the questions of fact that have been raised.

Mr. Raphael's arguments on the facts are quite contrary to the findings of the trial examiner and of the Board.

And the Court of Appeals assumed those finding to be correct and our position of course is that the case is to be decided here on the basis of those findings of what questions maybe open to Mr. Raphael when the case goes back as we think it should to the Court of Appeals.

Or whether he then can argue that there was a lack of substantial evidence to support the findings and so forth is not a question presently here.

We think there was substantial evidence and I see no reason to discuss it.

So far as Mr. Brown's opinion goes -- speech goes, I think the Court will find nothing in there which is in anyway inconsistent with the argument made on behalf of the Board here or with the general philosophy that I have sought to express.

Justice Potter Stewart: Are you contending for a per se rules necessary?

Mr. Cox: We're contending that unilateral action of the magnitude involved here during negotiations while the Union is seeking to bargain of the substantives and before an impasse has been reached, it is per se a violation of the duty to bargain and of Section 8 (a) (1).

Justice Potter Stewart: In other words, your answer is yes.

Mr. Cox: The answer is yes.

The qualification I put in was purposeful.

It is a rankle which frankly has always troubled me.

There are certainly some minor instances of unilateral action which it must be possible to take.

Suppose the farmer -- as far as a worker punches a farmer in the nose and surely the employer can get him out of the plant even though negotiations were going forward.

And I -- therefore didn't -- I wanted to limit myself to unilateral action of this magnitude prior to an impasse during the --

Justice Potter Stewart: But your answer is --

Mr. Cox: -- negotiation.

Justice Potter Stewart: -- yes.

You are contending for a per se rule and then you just filed it as --

Mr. Cox: As applied to --

Justice Potter Stewart: Define what the --

Mr. Cox: -- certain things --

Justice Potter Stewart: -- rule ought to be.

Mr. Cox: As applied to certain things, yes.

Justice Potter Stewart: Yes.

Justice Felix Frankfurter: Alright.

Mr. Cox: Yes.

Justice Felix Frankfurter: Mr. Solicitor.

Mr. Cox: Without any questions, absolutely.

Justice Felix Frankfurter: Mr. Solicitor, unless I'm wrong, you -- the phrase per se didn't come in your main argument, is it?

I don't mean --

Mr. Cox: I didn't use it.

Justice Felix Frankfurter: That's what I mean.

Mr. Cox: I didn't use it.

Justice Felix Frankfurter: Alright.

I'm usually in leery of phrase so I want to know what per se is.

Mr. Cox: Well, I take it that it means that this Act --

Justice Felix Frankfurter: I mean, I want (Voice Overlap) --

Mr. Cox: In and of themselves --

Justice Felix Frankfurter: Would you state --

Mr. Cox: -- regardless of the employer's state of mind are a violation of Section 8 (a) (1).

Justice Potter Stewart: It's a unilateral action of this kind and magnitude taken before an impasse and bargaining is reached is per se a failure to collectively bargain is a violation --

Mr. Cox: Is a failure to collectively bargain regardless of the employer's --

Justice Potter Stewart: Right.

Mr. Cox: -- state of mind.

Justice Potter Stewart: Yes, therefore a violation of 8 (a) (5) of the statute.

Mr. Cox: At Section 8 (a) (1).

Justice Potter Stewart: And -- and also Section 8 (a) (1).

Mr. Cox: Yes.

Justice Potter Stewart: That's the per se rule from which you're contending.

Justice Felix Frankfurter: It's not a very -- not a very embracing rule of law because of this kind and -- what was the other adjective or the other qualification under these circumstances?

Justice Potter Stewart: Well, any action by --

Mr. Cox: No, I didn't --

Justice Potter Stewart: -- this employer.

Justice Felix Frankfurter: But I just want to know what you deemed to be the rule of law which will guide a case coming up before the Board, the Tuesday following the Monday this case goes out in your favor?

Mr. Cox: I contend that for an employer to take unilateral action of substantial magnitude or something like that.

I'm trying to exclude the discharging the thought.

Justice Potter Stewart: The individual grievance of a --

Mr. Cox: Yes.

That for employer to take unilateral action to change terms and conditions of employment.

Justice Potter Stewart: Bargainable.

Mr. Cox: Bargainable terms and conditions of employment at a time when the employees have designated a bargaining representative and when the bargaining representative is seeking to bargain on those subjects and when no impasse has been reached is regardless of the employer's state of mind in violation of the statute.

Justice Potter Stewart: And regardless of any other circumstances really?

Justice Felix Frankfurter: Well --

Mr. Cox: No, I don't think I would go -- I don't think I would go that far.

Justice Potter Stewart: What circumstances can you think of that would make it a violation?

Mr. Cox: Well, I would -- I would have to -- without being more precise, I would think the Union's conduct might be a relative circumstance.

If the Union, while seeking to bargain was conducting in itself a way that made it practically negotiate -- practically impossible to carry on negotiations, I would think that would raise a different issue (Voice Overlap) before this Court on the findings of the Board.

That's the -- that's the chief area in which I'm uncertain.

Justice Felix Frankfurter: But we know that it (Voice Overlap)--

Mr. Cox: I just don't -- I don't think of any other Justice Stewart.

I'm not trying to evade it --

Justice Potter Stewart: I --

Mr. Cox: -- but I -- I just hesitate to state it more broadly than the case needs to -- be required.

Justice Potter Stewart: Well, I was wondering if you were thinking of -- regardless of what was actually going on at the bargaining table, your -- your rule, your -- the rule you contend for as I understand it, you would apply whether or not and regardless of the fact that the employer's representatives were sitting down day after day after day after day at the bargaining (Voice Overlap) --

Mr. Cox: That's correct.

Justice Potter Stewart: -- subjective in --

Mr. Cox: I would say for example, let's suppose that the employer's representative was sitting down day after day --

Justice Potter Stewart: It's subject in --

Mr. Cox: -- bargaining in --

Justice Potter Stewart: -- good faith --

Mr. Cox: complete good faith --

Justice Potter Stewart: Yes.

Mr. Cox: -- with a union which has been certified to represent all the employees is the plant-wide union.

Justice Potter Stewart: Yes.

Mr. Cox: And he's bargaining with that union in complete good faith.

It goes out and bargains with the union representing the pattern makers, a small group at the same time.

He's violated the statute, perfectly clear because he is obliged to concentrate on fixing terms and conditions in negotiations with the majority representative and each unit would include the pattern maker.

Again, if he goes and bargains with individual employee, even though he sits down day after day.

Now, I am saying following the opinion of the Court in the Insurance Agents case that unilateral action is like bargaining with the minority union or individual bargaining.

Justice Felix Frankfurter: It leaves open considerable area of discretion or at least of -- of judgment determination -- determination by judgment whether an impasse has been reached.

Mr. Cox: That is true.

Justice Felix Frankfurter: We know in the international field, we think an impasse has been reached and no, no, no, has been said and two weeks later, somewhat rather, yes, it said.

Mr. Cox: This -- I think the -- I think that is certainly true, and there's -- there's room for an area of judgment and discretion.

I think the point here is clear that the Act after the -- an effort has been made to fix terms and conditions of employment by joint determination.

And if that doesn't work, the employer has to have an opportunity to run his plant.

And a variety of circumstances if he was one of five, who would always follow the same wage pattern and they were competing with each other for skilled machinists, the time when he can move unilaterally, by it become much quicker, might come much quicker than in a situation like this one.

But here, we have an explicit finding that there was no impasse and indeed two of these instances of unilateral action came one very early in any negotiations, one during a recess at the request in the State Mediation Board.

And so I think there's -- on the findings made by the trial examiner, the Board and accepted by the Court of Appeals, there is -- this is the case where there is no impasse.

Chief Justice Earl Warren: Mr. General, there was -- I'm a little confused just a few moments ago, I understood you say that when this case goes back to the Court of Appeals as you suggest that it does that there are certain things open to (Voice Overlap) --

Mr. Cox: Well I --

Chief Justice Earl Warren: And I heard -- understood you at the beginning to say that all you -- that you wanted both compliances.

And it --

Mr. Cox: Well --

Chief Justice Earl Warren: It was just -- we sent back to the Court of Appeals for both compliance.

Mr. Cox: Well, I suppose this would be -- I've -- I had assumed, this is -- what we seek is finally an order enforcing the -- is a decree enforcing the order of the Board.

I suppose this Court's mandate would be reversed and remanded for further proceedings in accordance with its opinion.

Now, there may --

Justice Felix Frankfurter: What questions were left open?

Mr. Cox: Well, I don't -- I'm not sure what questions were --

Justice Felix Frankfurter: Did you seek for -- if you seek full enforcement and you do not even give to Judge Lumbard --

Mr. Cox: I don't deal to that.

Justice Felix Frankfurter: Yes.

So what is left open?

Mr. Cox: I was envisaging this possibility.

I don't think it's a very real one but I don't see that we can argue that it's foreclosed.

The argument is made here by the respondent that there was a -- so long a period of delay between the events in question and the issuance of this order that the order could bargain with the Union should not in any event have been enforced that conditions have changed too much.

That's the contention which may -- I don't know, may have been presented to the Court of Appeals or may not have been passed upon by it and it would seem to me on the remand on that ground for challenging the decree of the order of the Board might still be available.

And -- but I was really thinking to emphasize was that those other possible grounds of attacking the order as to which I really say nothing aren't before this Court.

Indeed, that one would require a change in the order and this Court under its rules to jurisdiction wouldn't have power to deal with it.

That was all I was --

Chief Justice Earl Warren: I see, I see.

Mr. Cox: -- seeking.

If he has other grounds for attacking it that are not related to this question of unilateral action of Section 8 (a) (1) and (5), I suppose he still can present them there.

Justice Potter Stewart: In other words, there may be grounds which the Court of Appeals did not reach.

Mr. Cox: It's possible, yes.

That's -- that's really all --

Justice Potter Stewart: -- (Voice Overlap) -- Court of Appeals eventually to --

Mr. Cox: Yes.

Right.

That is what --

Justice Potter Stewart: -- (Voice Overlap) -- on the grounds.

Mr. Cox: -- all I intended to --

Chief Justice Earl Warren: Yes --

Mr. Cox: suggest --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- Mr. Chief Justice.

Justice Felix Frankfurter: Would you think it was desirable or undesirable to use the phrase per se except with such particularity of description of the circumstances of this case on which the order of the Board rested that there wouldn't be anything per se except to this particular case?

Mr. Cox: I don't think the Board reported to adopt its narrow rule as that.

Justice Felix Frankfurter: No, I'm not suggesting it did.

I'm just -- if may use any vulgarism, leery of any per se in this model.

Mr. Cox: Well, I -- I think the rule -- I think the rule per -- the expression per se is --

Justice Felix Frankfurter: That's what I was talking about.

Mr. Cox: -- an unfortunate expression.

Justice Felix Frankfurter: That's what I'm talking about.

Mr. Cox: I do think that my case requires -- made to convince the Court that there was a violation of the statute here regardless of the employer's state of mind.

Justice Felix Frankfurter: That -- I understand that.

That's a very different thing.

Mr. Cox: Yes.

Justice Hugo L. Black: Do I understand that you're abandoning your request at the end of your brief, that this be remanded with directions to have a decree enforcing the Board's order.

You used -- you have a footnote there about the little instant that you mentioned about times (Voice Overlap) indicating that that's not officially important to -- inquiring any difference as to this one.

Mr. Cox: I would suppose that our request if there are any other points that were raised did not pass on below, it would seem to me as I stand here Mr. Justice Black, had been phrased a little too broadly.

I may get trouble with my assistance when I go back to the office.

But as I stand here and think of it, it would seem to me that if he had raised some other points in the court below that weren't passed on, that he's still entitled to preserve them.

Justice Hugo L. Black: Well, I don't want to delay this but I do -- this all occurred and there was reference to that.

What you're really arguing is that a finding of bad faith is not indispensable to the findings which the conclusion which Board reached, didn't it?

Mr. Cox: That's correct.

Justice Hugo L. Black: Well, if that's it and suppose it would be affirmed, it's not -- it's not indispensable.

As I understand it, he's arguing is under the Universal Camera doctrine, taken as a whole, looking at the whole record, the Board has already -- the Court has already decided that it will not enforce the order under the -- the Universal Camera rule.

Mr. Cox: Well, I don't think that the Universal Camera doctrine --

Justice Hugo L. Black: That's what I want (Voice Overlap) --

Mr. Cox: -- means that the Court of Appeals is entitled to look at the Board order and then say, “Well, taking everything into account but we decide not to enforce it.”

I take it that the expression relates to the findings of fact and to the question whether there is evidence to support the findings of fact and this would include particular findings.

And that the effort was to compress what was believed to -- by the Congress and some experts to be the prior practice in picking and choosing bits of evidence to support finding in contrast with an effort to determine whether the evidence is substantial, viewed in the light of its context to other element.

But I don't think this goes simply to a general power to enforce or not enforce a Board order depending on your judgment of the record.

Justice Hugo L. Black: I didn't -- I didn't make my problems clear as I thought you'd raise it as this.

As I understand your argument is in effect with reference to 8 (b) (5) that this is the equivalent of a finding of the Board that they refused the bargaining.

That's the equivalent of it, isn't that right?

Mr. Cox: Yes of it's --

Justice Hugo L. Black: And they refused to bargain --

Mr. Cox: I would say it was a ruling of law that they had refused --

Justice Hugo L. Black: Ruling of law?

Mr. Cox: -- to bargain.

Justice Hugo L. Black: Ruling of law?

Mr. Cox: Yes.

Based upon the finding that they took these three unilateral act.

Justice Felix Frankfurter: And the ruling was -- if I may intervene?

Justice Hugo L. Black: Yes, go ahead.

Justice Felix Frankfurter: And the ruling was set aside -- and the ruling was disaffirmed by the Court of Appeals through the introduction from your point of view of a near relevant criteria namely good faith.

Mr. Cox: Yes.

They --

Justice Felix Frankfurter: So that --

Mr. Cox: -- set up.

They misinterpreted --

Justice Felix Frankfurter: What the Court of Appeals --

Mr. Cox: -- the statute.

Justice Felix Frankfurter: What the Court of Appeals did was refuse to enforce it by requiring an element which as a matter of law you contend is not what he requires.

Mr. Cox: That's correct.

Justice Hugo L. Black: Well, have they passed on it then without that element?

Have they reached that conclusion without that element?

Mr. Cox: I think as I read the opinions, they did not consider perhaps because they were not asked whether the Board's findings were supported by substantial evidence.

They accepted them.

I don't want by saying that this question is theoretically available to cast any doubt on them, but I am convinced through my study of the record that there is substantial evidence, more than substantial evidence.

Justice William J. Brennan: Well, Mr. Solicitor, you're not -- I gather you don't believe that whatever limitation on the Universal Camera there maybe on this Court's review --

Mr. Cox: Hasn't anything to do with this.

Justice William J. Brennan: -- had anything whatever to do with this.

Mr. Cox: Nothing to do with this.

No.

Justice William J. Brennan: That's what I thought.

Mr. Cox: No.

Not at all.

Justice William J. Brennan: Yes.

Justice Felix Frankfurter: But before you sit down, may I -- and fully understand the colloquy between you and Mr. Justice Black.

If the question of the sufficiency of evidence on Universal Camera doctrine fully unrelated to any proper or improper principle or doctrine of law to which -- which was -- by which the facts are to be judged.

If that issue was opened before the Court of Appeals, and I think it was.

I don't know much about it.

If it was opened before the Court of Appeals and in fact the Court of Appeals had no occasion to go on it because they refused to enforce on this illicit view about good faith, then I should suppose in view of what you said you think that that's still open before them to press before the Court of Appeals taking out as improper elements, is that right?

Mr. Cox: I don't see why not.

Justice Felix Frankfurter: Alright.

Justice Hugo L. Black: That was the question that --

Justice Felix Frankfurter: But aren't we (Voice Overlap) --

Mr. Cox: To -- let me just to be sure that I am clear because I'm a little worried.

Maybe I didn't understand you.

Let us suppose that the respondent were in a position to claim that the work was an impasse in December, 1956 and that there was no evidence to support the Board's finding that it occurred in May.

I take it that when the case goes back to the Court of Appeals that he can again oppress that attack on the Board's finding that the impasse was in May, and that that question isn't properly here at all.

That's what I'm trying to say.

Justice Felix Frankfurter: Or any of -- or any other issue on which the Board must face a judgment with due regard to the entire record as a matter of evidence stripped of any irrelevant or inadmissible doctrine of law.

Mr. Cox: Yes.

Justice Felix Frankfurter: Well, that makes a -- presuming that you should prevail on that -- on the main issue which you've argued, effects what this Court is to do in sending the case back.

Mr. Cox: Well, I would -- I would suppose that the proper mandate was reversed and remanded for further proceedings not inconsistent with his opinion.

Justice Felix Frankfurter: Making clear what --

Mr. Cox: -- which would make it clear what the rule of law is and that the court below weigh down an erroneous rule of law and leaving the petitioner any other contentions either based on the inadequacy of the evidence or other rules of law.

I don't think of any --

Justice Felix Frankfurter: It isn't (Voice Overlap) --

Mr. Cox: -- but if he think of one why --

Justice Felix Frankfurter: And it isn't for us to say what issues were or were not opened to the Court of Appeals which for -- from its point of view has had no occasion to canvass.

Mr. Cox: It would seem they weren't open to May, right.

Justice Felix Frankfurter: Alright.

Mr. Cox: Thank you.