CAREY v. WESTINGHOUSE CORP.

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Argument of Benjamin C. Sigal

Chief Justice Earl Warren: Number 21, James B. Carey, as President of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner, versus Westinghouse Electric Corporation.

Mr. Sigal.

Mr. Benjamin C. Sigal: Mr. Chief Justice, may it please the Court.

This case concerns a suit to compel arbitration of a grievance pursuant to a collective bargaining agreement.

The Court of Appeals for the State of New York refused to compel arbitration on the ground that the National Labor Relations Board has exclusive jurisdiction of the matter.

The material facts of the case are simple.

As a result of an N.L.R.B. election, the petitioner was certified as the bargaining representative for a unit of production and maintenance of employees at the respondents Baltimore works.

On -- pursuant -- after having a national agreement was executed between the party and the respondent agreed to recognize the petitioner on behalf of and in conjuncture with this Local 130 as the exclusive bargaining representative of these employees among others.

The national agreement provide among other things for arbitration of grievances which involve the interpretation, application and -- or claim violation of the agreement.

On March 5th, 1958, the petitioner filed a grievance protesting the respondent's refusal to apply the agreement to the performance of certain work which has been assigned to employees who were in the engineering laboratory of the respondent outside of the unit of -- of the petitioner but in the same plant.

The union can tender that the work was production and maintenance work and that the assignment of this work outside the bargaining unit was a violation of the collective bargaining agreement.

And -- and the assignment that to this engineering laboratory which was in a bargaining unit represented by another union, the Federation as so-called, which represented the salary technical, clerical and professional employees but excluding the production and maintenance workers and they had an agreement for recognition on this basis.

So, there was no conflict between the units of either of the unions, no conflicts in the agreement of recognition.

Now, in support of its grievance, the petitioner contended that the respondent had moved production and maintenance work to the engineering laboratory as well as employees from the petitioner's unit into this laboratory and had thereby violated the agreement.

When the company rejected the union's grievance, the union requested arbitration and sought enforcement of its -- and when -- and the company rejected it, thereupon the union sought enforcement in the New York State Court.

During this entire period, from the beginning to the filing of the grievance to the very end, the Federation did not events any interest whatsoever in this dispute.

Nothing in the record indicates any interest on the part of the Federation.

Now, although filed in a state court is of course clear that there's no question that the outcome of this suit is governed by the federal law applicable to the enforcement of collective bargaining agreement pursuant to Section 301 of the Labor Management Relations Act of 1947.

Now, the respondent's resistance to arbitration is not based on a clean limitation of the agreement to arbitrate.

It rather contends that the matter to be arbitrated falls within the exclusive jurisdiction of the National Labor Relations Board.

Now, at the outset, we pleaded as clear that the basis of the decision of the court below was an error.

The court there relied on the Marine Engineer Beneficial Association decision which holds that in the relation between the state and the Federal Government, the state court injunction is preempted whenever the subject matter of the dispute is arguably within the area which Congress regulated in the Labor Management Relations Act.

However, the line of decisions in Smith versus Evening News Association by which this is -- this case is a part, make it clear that the question of the relationship between this federally created jurisdiction of the Board and the federally created jurisdiction of the courts under Section 301 to enforce collective bargaining agreements is entirely a different question from the one which this Court dealt with in Marine Engineer Beneficial Association.

In the former line of cases that is in the Smith line of cases, the jurisdiction of the Board is not displaced by Section 301 and neither is the jurisdiction of the courts under Section 301 displaced by that of the Board.

I don't wish to dwell further really on this question so far because it appears to us that the respondent does not really contend that the basis of the decision of the court below was correct.

But may we just -- the concluding paragraph of the respondent's brief at page 45, the respondent asserts fully whether or not strictly speaking, the result below should be expressed in terms of preemption.

The preemption cases provide a forceful analogy of -- supporting affirmance without reliance on any doctrine, there were doctrine enclosed.

The decision below should be affirmed on the basis of the overall scheme of the Act requires that the instant dispute be resolved by the N.L.R.B. to the exclusion of an arbitrator under the IUE agreement.

Now, the respondents and of course this argument, asserts that this case falls within the exception suggested in Smith that this is -- that this is a serious problem which was not dealt within the Smith and that there is no fair and orderly solution available otherwise and through the N.L.R.B.

And this is a serious problem which must now be resolved.

Now, in Smith, the Court -- this Court rejected the -- as a general matter, the contention of the concurrent jurisdiction of the N.L.R.B. under Sections 8, 9 and 10 of the Act with that of course under Section 301, precludes enforcement of a collective bargaining agreement with respect to matters which give rise to the overlapping jurisdiction.

Now, the Court also stated there that if there are situations in which serious problems might arise out of concurrent jurisdiction over acts which are mount to an unfair labor practice to the courts will -- the Court will face those problems when they arise.

But the Court did not find such a problem to exist in Smith and we submit there is no such problem here.

And just recently, the -- this Court of Appeals, the Second Circuit dealing with exactly the same situation as we have here, likewise found there was no such serious problem as the Court suggested in Smith and resolved the matter in favor of enforcing the arbitration agreement, that case is now pending before this Court on a petition for certiorari.

Now here, unlike Smith, the Court is not asked to determine the merits of the contract grievance and enter a final judgment of it.

All we have here is the question of enforcement of the agreement to arbitrate the grievance and that therefore, there are even less possibility of any serious problem than there was in Smith.

The precise scope of such problem as may arise will only be known after the arbitration when the nature of the grievance will be precisely known, when the fact will be determined, when the merits of the dispute had been established and the remedy chosen by the arbitrator has been stated and given.

No problems arise from the mere fact of ordering arbitration.

Should the union lose its grievance that would dispel all the specters which have been suggested?

If the union wins the arbitration, it is not possible to state now that there will be any serious problem.

The resolution which the arbitrator might determine upon might be satisfactory to all parties and there will be no further problem.

Now, this Court had occasion to deal with a case very closely resembling the one here in the White -- Whitehouse versus Illinois Central Railway Company.

Now, that was -- and arose under the -- Rail National -- the Railway Labor Act and also concerned a two-union work assignment dispute.

One union took the case to the National Railroad Adjustment Board which refused the request of the employer that the other union be notified that it had a right to participate in the case.

The employers if there would be serious problems of that union were not present or not participating in the proceeding.

This Court there held that the injuries feared by the employer were too speculative to warrant judicial relief because an award it said, “Both maybe rendered which could occasion no possible injury to it."

Now, while the problems arising out of the enforcements of the arbitration agreement are entirely speculative.

The harms that would flow from the denial of arbitration in this case are very concrete and substantial.

Contrary to the company's assertion, no relief can be obtained by the petitioner from the National Labor Relations Board for the violation of its contract.

The Board has no jurisdiction to enforce collective bargaining agreements as such.

This grievance may go far beyond the matter of the question of the work assignment or -- or representation.

They are in this case serious problems of seniority involved.

Now, if in -- the respondent asserts this is a representation matter which it should go to the Board.

Now, we're -- it cannot be set at the outset, the Board would even take it if a petition for clarification were submitted, the Board might decide this isn't the case for clarification.

Now let us assume the -- a representation petition were filed, where in this case even though there's great doubt that it would be accepted because of a contract bar.

The result -- the Board -- the Board would presume the correctness of the work assignment by the employer, that is not one of the criteria used by the Board in determining the appropriate bargaining -- bargaining unit.

The Board will decide the question solely on the principles that has established for the -- determining the proper -- the composition of bargaining units and not on the basis of the petitioner's contract right.

Thus, assuming the Board could petition the -- the petitioner could go to the Board, the -- such a proceeding would not be equivalent to the enforcement of the petitioner's collective bargaining agreement through arbitration and certainly could not dispose of all of the matters which had been raised by the grievance.

If on the other hand, this is not a representation dispute but it is a work assignment dispute as the petitioner believed.

Any authority of the Board to resolve this matter would be dependent on Section 10 (k), flowing from the violation of Section 8 (b) (4) (d) of the Act.

The Board's authority to determine work assignment disputes under Section 10 (k), comes into play only when the -- when the union unlawfully engages in a strike or a threat of a strike and then a charge is filed against it.

Only then may the Board take up the question of the work assignment and resolve it to the extent that it can.

Now, it appears to us that certainly that Congress did not intend to make an actual or a threatened obstruction of commerce a condition precedent to the availability of a forum for the resolution of such a dispute.

Now, furthermore, in violating Section 8 (b) (4) (d) if the petitioner were to determine upon that, the union would subject itself to damages for violation of its -- under Section 303 of the Act.

A grant of concurrent jurisdiction to the courts to hoard tort damages for conduct which is also an unfair labor practice, further confirms we believe that Congress did not intend that the jurisdiction of the courts established under Section -- entitled 3 of the Act, was to be ousted by the authority given to the Board under Section 10 (k), from title 1.

And this of course decides in the fact that that -- that authority couldn't be exercised to resolve a contract right of the petitioner.

Now, I've mentioned that this might be either a representation dispute or work assignment dispute.

There are some difference between the parties as to what it is, but the parties are agreeing, however, that is immaterial that the result of this case whether is a -- a one or the other.

Now, the denial of enforcement of the arbitration agreement in this case or at any case would mean that whatever that party asserts a grievance which raises a question which arguably falls within the jurisdiction of the N.L.R.B. , it will find that it has no remedy for the enforcement of its contract.

And I submit that most grievances can in one flash or another, arguably be shown to the matter within the jurisdiction of the Board.

Now, such a holding would certainly invite parties -- reluctant parties to arbitration agreements to raise -- to refuse arbitration and the hope that they could flash in a matter somehow into a question which falls under the jurisdiction of the Board.

And this, I submit would create a burden on the enforcement of collective bargaining agreements and arbitration agreements comparable to what the -- this Court found, the American Manufacturing case and this would certainly be a very highly crippling influence or factor on arbitration matters.

Now, the respondent lay stress on the fact that in this case, it maybe confronted with the obligation to arbitrate impromptu agreements, covering the same matter and therefore, it might be confronted with inconsistence of warrants with one of which should -- could not comply.

Now, the sure answer to that contention is that this is at this point highly speculated.

Furthermore, this asserted dilemma falls outside the scope of the preemption cases.

To the extent that such a problem may arise in the future, it is certainly not in our view that be resolved by weighing the congressional intent as to the balance of any could be struck by between Section 301 and Section 10 (k) of the Act.

Respondent's remedy to bar enforcement of arbitration does not resolve the conflict but would force both unions to accept the respondent's determination of its own -- of its obligations as final.

Now, in this case, there is no indication that the other union has any interest in this matter.

There is no dispute between the two unions so far as this record reflects.

The respondent would have the court believe that there is such a dispute and that the employer is just an impartial neutral.

Now, as a matter of fact, this dispute didn't arise until after both agreements were executed and arose by the unilateral act of the employer in making the changes in these transfers of employees and changes of work assignment.

This is a dispute between the petitioner and the employer and it falls within an area which -- matters which are the critical issues in bargaining at this time.

The real question's relating to the performance of new work, the consequences of technological change, the introduction of new processes and equipment and the effect of the -- and the impact of the relocation of plants, these are all matters which are of vital importance in bargaining today and they are vital importance in the administration of collective bargaining agreements.

These are the grist in -- of the grievance mill, frequently they involved erosions of the bargaining units.

They are highly inflammable issues and they should be disposed off expeditiously, and the parties have agreed on a procedure for disposing of these matters of another contract violations expeditiously.

Justice Potter Stewart: Mr. Sigal the Government in the -- its amicus brief, makes a distinction between what it calls assignment of work disputes and representation disputes.

And as I understand it, is of the view that this case involves a representation, dispute as defined --

Mr. Benjamin C. Sigal: The Government.

Justice Potter Stewart: -- by -- yes.

Do you agree with that?

Mr. Benjamin C. Sigal: Well, no.

Our position is that on the fact, this is closer to our work assignment dispute into a representation dispute, but we don't deny that this is a difficult area.

It's difficult to decide frequently whether it's one or the other but we have said it makes no difference.

We say at the work assignment dispute because the work was taken out of the -- out of the unit represented by the petitioner and transferred to the unit represented by this -- the other union, and employees that were in the unit of the petitioner were taken out and put in the unit of the other union.

Now, we say this has most of the indicia of a work assignment dispute but we say it makes no difference whether it's one or the other.

The Government has argued both questions, and the respondent has specifically stated that it makes no difference.

I call your attention to -- I think at page 13 of the respondent's brief or specifically a search that under either of those characterizations that has work assignment dispute or representation dispute or any other characterization, the fundamental nature of the grievance as such that the decision below should be affirmed, so that none of the parties here as really -- a critical rise on that place -- on a difference.

Now, in our view that, if the decision of the court below is affirmed, it will unsettle countless collective bargaining relationship which seriously interfere with the expeditious settlement of disputes by the machinery contemplated by the parties.

And what emasculate Section 301 of the Act insofar as that Act makes -- that Section makes possible the enforcement of arbitration agreements.

And therefore, we believe that the decision below should be reversed.

Thank you.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

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

The Government filed a brief in this case at the Court's invitation and I sought time to participate in the oral argument because in some respects, this seems to us to be a complicated case.

Our position basically reaches the same result as the petitioners.

We think that the courts below did have power to order the claim to arbitration, that therefore the judgment of the New York Court of Appeals should be reversed.

At the outset, it seems to me essential that have a clear understanding of the issue that the union sought to have referred to arbitration, not because the Court needs to decide it, indeed of course it won't decide it, but because that characterizes and affects the whole case.

In our view, the dispute does relate to the representation of employee.

The claim as it was setout in the original petition which is the procedure in New York for securing a mandatory -- mandate to arbitrate, sets forth at the back bottom of page 12 that the union is protesting the refusal of the company to apply the national agreement to related supplement, to its production and maintenance employees at its Baltimore plant.

Then it goes on and describes the work their engaged in.

The applicable contract provision according to the petition is the recognition clause over on page 13 at the top, where the company agrees to recognize the union, where the union or its locals through a lawful National Labor Relations Board certification, has been lawfully designated as the exclusive bargaining representative.

And then there's a reference later in the paragraph, two-board certifications that are made a part of the agreement.

And the particular certification in question appears at the bottom of that page.

So that the complaint in essence is that the company violated the recognition clause by not recognizing the union as the bargaining representative of a unit described in the contract and also a unit which had been certified by the National Labor Relations Board.

We think that it follows simply from this statement of claim that the company is right in saying that the dispute is over the extent of the union's bargaining rights.

It is, thus, the union represents, thus the contract cover the employees in question.

That is not, which I shall explain later, what we say is a work assignment dispute.

The union has a remedy here before the National Labor Relations Board.

If the company is indeed failing to bargain with it as the representative of employees within the unit described in the certification and in the contract, then that is a refusal to bargain collectively, a charge could be filed and presumably a complaint would issue.

Equally, the union and also the employer for that matter could file a motion with the Board seeking to clarify the certification and thus resolve the very point issue.

One of the little ironies perhaps irrelevant of this case is that the company is talking -- has been talking for three and a half years about the need for a National Labor Relations Board determination but they've never taken the case there which they perfectly well could've done without I believe abandoning their locality.

Thus, our position differs a little from part of Mr. Sigal, and that we say that the underlying dispute should be referred to arbitration in accordance with the contract even though there is a remedy before the Board.

On the law, two really settled principles or policies, it seemed to me to be the starting point.

The first is that it's the policy of the National Labor Relations Act, the Labor Management Reporting Act to encourage the arbitration of disputes arising under collective bargaining agreements of where the parties have entered into a consensual agreement for arbitration.

And the second is, as held in Smith against the Evening News Association, neither a court nor an arbitrator loses jurisdiction over a claim for breach of contract merely because the Labor Board might have jurisdiction over the same person so that here, the company that prevailed has the burden of establishing some kind of an exception to well-settled principles.

We can lay aside at once, I think, the -- the company's argument and exception should be made because the objective of the IUE grievances they say is totally repugnant to the policies of the Act.

The IUE says that what maybe greater truth, that the company's conduct is totally repugnant to the Act.

The fact is of course that at this stage, both of those assertions assumedly answered to the underlying dispute of which is still unsettled.

There are just four things that I think can be said at this stage.

First, there is a dispute over the scope of the bargaining unit as to which either the petitioner or the company is wrong and none of us note that knows which.

Second, the dispute could be settled by the National Labor Relations Board.

Third, if the dispute goes to an arbitrator, he may make the very same ruling that the Board would make if it had the case or he may reach a different conclusion not richer than the willful sense, but because his judgment of what the Board would do is different than the Board's own judgment of what it would do.

At fourth, an award in favor of the petitioner would not bind the rival union which could thereafter institute an unfair labor practice proceeding against the employer for honoring the arbitrator's award, hoping to get a contrary decision.

The real question, therefore, is whether arbitration of the question of contract interpretation involving representation under these circumstances threatens such interference with the policies of the National Labor Relations Board or of the Act or such unfairness to employees or the company as to justify an exception from the rule laid down in Smith against the Evening News Association.

Submitting the dispute over the precise scope of the bargaining unit to arbitration would carry no real threat we submit, of interference with policies of the National Labor Relations Act or with the operations of the National Labor Relations Board.

The arbitrator, when he interprets the contract, will be following the language of a Board certification.

Presumably, he will guide himself as best as he can by the Board policies, the precedents and the chance that he will reach a different conclusion than the -- the Board would reach is perhaps not very great.

But even if his conclusions were different, even if we take the other heart of the dilemma, there would be no significant interference with the policies of the Act.

This dispute and the thousands of disputes like it are concerned with the classification of relatively small peripheral groups of employees who could probably be classified in one unit just as well as in the other and I've often wondered why the flipping of coin wouldn't reach just as sensible result as the mountains of papers that are gone through in representation proceeding.

Justice Byron R. White: Mr. Solicitor General, is there really a question of what the Board meant in the certification here?

Is it -- is there -- is there any real doubt about what -- what the unit (Voice Overlap) --

Mr. Cox: Well, its interpretation it's -- I suppose that it's a matter of application.

The underlying question as I understand it is, are these employees in the laboratory doing what may properly be described as production work or are they doing what they properly be described as research or experimental way?

Justice Byron R. White: But in any event, they're engineers or whatever they -- whatever the exclusion was --

Mr. Cox: Well, the point as an engineer is that -- that I would think was a real question of interpretation if that's the problem.

Justice Byron R. White: Well then, you're -- you're arguing for this result only on the assumption that there's some doubt and ambiguity in the Labor Board's certification, you wouldn't make the same argument as -- what's absolutely clear that --

Mr. Cox: I would -- I would make the same argument if anybody was fussing about it --

Justice Byron R. White: Yes.

Mr. Cox: -- because then it would seem to me that it wouldn't be absolutely clear.

I don't think that a court should say, "Or we are satisfied that there's no doubt about the Board's -- the meaning of the contract or the meaning of the certification as a same thing and therefore, the case will go to arbitration."

No, I would most empathically argue that it is not to the court to say that there is no real merit to the claim here and I think this question was in effect, decided by the enterprise case and the other steel workers case.

Justice William J. Brennan: Mr. Solicitor, would you make in this argument that this group were represented by another argument?

Mr. Cox: Yes.

Justice William J. Brennan: Even though with the protest of others?

Mr. Cox: Yes sir.

Justice Byron R. White: They are represented here.

Mr. Cox: They maybe.

They may well be.

I'm assuming that they are the --

Justice William J. Brennan: And protested as I understand it.

Mr. Cox: Well, they haven't chosen to come in yet and protest, though whether that is because they prefer not to get involved in this or whether that's -- they prefer to let the company carry the ball for them or whether they're not interested is all hypothetical insofar as the record shows.

Justice William J. Brennan: Well, if you suggest so, that would be immaterial and I think it -- the employer in this union could by agreement without arbitration, resolve risking to prove these people even though the protest --

Mr. Cox: But they could resolve that dispute as between themselves.

The other union, as I indicated, would not be bound by their resolution.

It would have on such other remedies before the Board or possibly elsewhere as might be available to --

Justice William J. Brennan: Well, that's -- well, if -- if the result will require to the Board remedy, I take it all (Inaudible)

Mr. Cox: It would but I suggest that that is not advantage enough to warrant departing from what is the settled policy.

I can't -- this is not a case where there are deposing considerations Mr. Justice Brennan.

It's quite clear to me that there are some disadvantages either way.

I and I --I do plan to deal with those things specifically and one of my assumptions is that this award will not bind -- will not certainly bind the other union.

There are some things that tamper that without attempt to an --

Justice William J. Brennan: Or oppose this litigation --

Mr. Cox: No, it doesn't.

No, I think that's one of the things that has to be acknowledged and wrestled with.

I was trying to suggest that in terms of interference with policies of the Act, then I come to the matter of affecting the other union link.

That in terms of interference with the policies of the Act, there is no real chance of interference because this is, as I said, a very small peripheral group of employees, the typical dispute of this kind.

We cited a number in our brief.

One for example is whether a man classified as an announcer-technician belongs in the unit of announcers or in the unit of technicians.

Another -- another illustration is whether a man who is doing maintenance work and powerhouse equipment outside the powerhouse belongs in the plant-wide maintenance unit or in the inside the powerhouse unit.

Justice William J. Brennan: Well, may I ask Mr. Solicitor, (Inaudible) this can be resolved by definition of the unit and (Inaudible)

Mr. Cox: It would not -- their agreement would not bind the -- would not either exempt them from unfair labor practice judges or bind them -- or bind the other union in a proceeding before the Court.

But I would still say that if they have agreed to arbitrate the contract question as between themselves that then there is an obligation to go to arbitration.

Justice William J. Brennan: (Inaudible)

Mr. Cox: They can enter into such an agreement and then it -- when if they -- if the company -- there's nothing to prevent the company now from treating these people as if they were in the IUE unit.

Justice William J. Brennan: But I (Inaudible) where these kind of problems that helped the union before a consideration (Inaudible)

Mr. Cox: The problem that has cribbled you come to realize, but there are great many other more vexing problems that any statural would immediately create.

Justice Byron R. White: But this -- you're just suggesting the employer may -- may -- in the face of a clear certification by the Board disregarded and agree otherwise as one of the union.

Mr. Cox: He may commit an unfair labor practice.

Now, I -- I don't think that it's accurate to say there is a clear certification here.

This is uncertain and the employer whichever he does is doing -- he's running the risk of violating somebody's right.

The things that you are supposing may all have been done now.

In fact, the IUE says they all have been done now.

If the company is violating a clear certification, disregarding the IUE's right and getting together with the Federation, the other union, in this regard of the Act.

I don't say it's doing that.

I say it is uncertain.

I don't know whether it is or not.

I think the Court has to proceed on the assumption that this is uncertain.

I kind of make the point that there is no interference with the Board policies in going to arbitration.

The work of the Board, the essential policies of the Act, large questions in freedom of choice, elections and things like that simply aren't involved in the allocation of these small peripheral groups of employees and it's the Board's conviction as expressed in the brief which I whole-heartedly joined that having this disputes go to arbitration facilitates the policies of the Act.

Now, I turn to the question whether there is unfairness to the employer or a possibility of utility in having the case go to arbitration, in range of questions that Mr. Justice Brennan and Mr. Justice White have been suggesting.

Justice Potter Stewart: Going back to one that's maybe not important, maybe hypothetical -- is your brief -- the brief of the Board or -- or the --

Mr. Cox: Yes.

Justice Potter Stewart: -- brief of the United States?

Mr. Cox: It's both, but the Board you will observe as on the brief, there's no -- I don't -- there was no conscious decision Mr. Justice to make it United States --

Justice Potter Stewart: Rather than the national (Voice Overlap) --

Mr. Cox: -- rather than the Board at all.

Justice Potter Stewart: There's no question that the views here expressed are the views of the Board?

Mr. Cox: No question at all.

And the policy views -- are the policies of the Board.

There's not -- not the slightest, they're very judicatory.

Justice Potter Stewart: Thank you.

Justice William J. Brennan: Do you say that the policy was the (Inaudible)

Mr. Cox: To the effectuation of the (Voice Overlap) --

Justice William J. Brennan: -- that's in fact is the work (Inaudible) Board?

Mr. Cox: I think the Board -- would -- the Board did -- the Board's lawyers did sign and therefore I take it that they concur in their statement that the chances are that an arbitrator will do a better job of resolving this kind of question than the Board will.

Now, after all this -- this is a matter Justice Brennan as I'm -- as I'm sure you'll recall of getting down there and seeing what the work is, what the relations between these employees and the flow of production through the plaintiff.

Arbitrators with job classification cases, sobriety cases, work assignment cases come especially where there's a permanent empire or a big company like Westinghouse to be very close to these things.

They get their hands dirty with them from time-to-time.

Justice William J. Brennan: (Inaudible)

Mr. Cox: No, but I think -- I think it is -- well, even the little guys get arbitrative for quite a number of them.

Once arbitrated, when where they said, “If I could make the rate, it was fair and if I couldn't make the rate out of piece of work then it wouldn't be fair and I was put to work.”

Justice William J. Brennan: But what they've obtained is (Inaudible)

Mr. Cox: No.

But the -- the people who do it still do this sort of thing over and over again.

Unknown Speaker: (Inaudible)

Mr. Cox: There's more of it then.

The -- let me turn if I may to the claim of unfairness to the employer.

The argument of course is that if the arbitrator sustains the company's position that will be the end of the matter.

If he sustains the union's position in the arbitration, then the company says, “This won't bind the other union.”

There's a chance that it will run to the Board and claim that there's been an unfair labor practice and the Board may find that the award did require the commission of an unfair labor practice and we will be required to stop bargaining with IUE and possibly, we will even have to pay back pay.

That possibility is inherent in the situation if IUE wins, I take it they're going to have to pay for a lot of back pay so that -- that unfortunately is hardly inescapable either way.

Now, granted that arbitration does create some risks prejudice to the company because it get carries no guarantee of absolute finality.

I wanted to suggest two general things.

First, there are good, many considerations that tamper that risk, also they don't destroy it.

And second, that there are good many considerations on the other side that I varied to a moment ago that would make an extremely unfortunate to create this kind of exception to the role of the Smith case.

The temperate considerations are these.

In the first place, one can't forget that the company did unequivocally promise to arbitrate this.

If they've got themselves in an inconsistent position, they are a little bit like the fellow who was -- sold his house twice.

Again, it is entirely speculative whether the rival union would carry the case to the Board.

I can't say it wouldn't, but it isn't here, wasn't in the court below.

If an arbitrary award -- went against it, it might well stop there.

Third, even so the arbitration award would not be legally binding upon the rival union, it would undoubtedly carry the weight of an expert's determination in the Board proceeding.

He would have been a man on the spot, and I do urge that is a very great advantage over cold record in Washington for four or five men dealing with words.

Fourth, either the court below or the arbitrator himself might offer the rival union an opportunity to come in and be heard in this proceeding.

It's even conceivable if the court below might order the case to arbitration only if the rival union were given an opportunity to come in.

I don't say it would do that.

I have no precedents that I can cite but it's at least the possibility.

Fifth, I submit most urgently that experience was a very large number of cases both in the railway labor world and in industry generally, shows that this kind of arbitration does result in a goodly proportion of the cases in the settlement of the dispute, even though both unions aren't the parties to it.

Now again, it's not an assurance.

I'm just talking about tempering considerations.

And finally I point out, there's nothing extraordinary at all about an arbitrators being called upon the to decide a question which if he errs may result in his requiring the company to commit an unfair labor practice or violates some other statute.

Some of you will remember that immediately after the (Inaudible), there was a considerable conflict between arbitrators and the views of General Hershey by administering the Selective Service Act about seniority.

The unions for a time, took the position that the returned soldier went back on the escalator that just where he got off.

He got credit for his work service.

But if layoffs were deepened up to reach his service, he was laid off.

General Hershey took the position that the soldier was entitled to stay on the payroll as long as there was anyone there for a year.

But now, arbitrators have to decide this is best they could whenever they have a seniority cases settlement.

But, they have to make similar decisions today where the unions demand this that somebody be discharged under a union shop clause and if the -- he has to do the best he can, there's always the risk that sat that in award will call for some violation of the surrounding legal structure.

If arbitrations to go forward, that is inevitable I think, inescapable.

Now, all that is that this need just it might be, it involves risks of duplication of inconsistency, but Labor Relations doesn't always flourish under the tidiest conceptual formulas and a more tentative process something that gets closer to the practice and the human problems often is the more effective.

Against any remaining unfairness or disadvantage that I don't think it can be talked entirely out of the case, I'm greatly exaggerated, when does have to balance the affirmative advantages of adhering to the settled policy of allowing courts and especially arbitrators to exercise their usual jurisdiction over claims for breach of contract.

And I -- I don't want to talk about the general policy.

That's clear enough.

But I would like to emphasize the advantages of arbitration in this specific kind of case and the disadvantages of trying to draw isn't no exception.

In the first place as I suggested a moment ago, the decision can be made in arbitration by a man personally familiar with the flatwork.

It can be made far more quickly and in expensively than in a Board proceeding, to hold that an arbitrator may not proceed whenever either party raises a question of representation, would fragment, impede and delay the arbitration of grievances.

Let me put a simple example to illustrate that part.

Suppose that a company in the time of layoffs, lays off A who's worked to the company 10 years and keeps B who has worked, let's say, seven years.

The union says there's been a violation of the seniority clause.

The company replies that though A had a break in his seniority so, he really has only five years seniority.

In addition, A can't do the work anyway and B can and finally throws in for good measure without putting any real stock in it.

Anyway, A is a supervisor and he's not within the bargaining unit.

Now, this would mean under the respondent's view, the whole arbitration has got to seize, that everybody has got to wait until the matter goes to the Board to find out whether A is or isn't outside the bargaining unit, whereas, if it could go to arbitration, the whole thing will be decided then and there.

In other words, that up -- opens opportunities for delay at best for stalling at words.

Again, I think the respondents will -- would introduce horribly confusing distinctions.

In many cases Justice Brennan, the unit is not defined by a certification as you know but is defined by contract between the parties.

Now, what would we to say?

That whenever the unit is defined by contract, it can -- the case can go to arbitration, the alternative to that is to say that whenever a company agrees voluntarily to setup a bargaining unit, it has the right to back out whenever it sees fit and get a Board determination.

Justice William J. Brennan: Well, I can see this difference that if there's been a contested determination of the unit, it might be rather different (Voice Overlap) --

Mr. Cox: Well even -- even that won't do altogether because it frequently happens that the original unit will be defined by the Board and then additional groups are added by contract, frequently were accepted.

Justice William J. Brennan: Well, I appreciate that.

Can additional groups be added by contract when some other union already represents an additional group perhaps itself where the Board (Voice Overlap) --

Mr. Cox: Not unless that union -- not unless that union that had gone out of existence.

Justice William J. Brennan: Well, it's in fact what we felt we have some aspect to that problem here.

Mr. Cox: There are if we may, would probably do but we don't know for sure but then I suggest --

Justice William J. Brennan: I gather, you're -- you're suggesting are you?

That this is an arbitration which results in a determination requiring Westinghouse to do something which may in fact be an unfair labor practice, this nevertheless is an enforceable award.

Mr. Cox: Well, I suggest they could go to an award.

I should suppose that a court in deciding whether to enforce it, would at least to some extent, consider whether it is a violation of the Act.

I should doubt that it would go back in the question to fact.

I would think that it would leave --

Justice William J. Brennan: Well, I don't -- I don't suppose --

Mr. Cox: -- that question to be tried out --

Justice William J. Brennan: I don't suppose (Voice Overlap) --

Mr. Cox: -- for the Board.

Justice William J. Brennan: -- cases Mr. Solicitor, they could go back on the front -- behind the fact, that is if the arbitrator's examination, assuming you don't have (Inaudible)

What does bother me is though as the Westinghouse says, “Well, I can't do this.

If I obey this, I'm committing an unfair labor practice.”

Everyone agrees that they are.

Nevertheless, may this union go back to the court and say, that's immaterial, we want an order and upon Westinghouse officials to comply with this award or else.

Mr. Cox: I would think that if the order said commit an unfair labor practice in some many words.

Justice William J. Brennan: That all it says is comply with the order.

Mr. Cox: No, I would think that a court would make an order directing them to do it and that the opposing union's remedy would be to go before the Board.

And the Board orders subsequently, directing it to bargain with it if it entered one, would of course control over --

Justice William J. Brennan: Well again, may I comeback to the question I ask you originally?

If -- if the alternative -- rather is that this kind of thing has to go to the Board, the problems that concern, they couldn't arise, do they?

Mr. Cox: The problems you'd now mentioned that so far as I see arise.

Justice Byron R. White: And you would -- you and suggest that if the other union did take the company to the Board and the Board found that this was an unfair labor practice, that that would control over the arbitrator decision (Voice Overlap) --

Mr. Cox: Oh yes, no question on that --

Justice Byron R. White: -- in the meanwhile.

Mr. Cox: Yes.

Justice Byron R. White: And --

Mr. Cox: And to call over any inconsistent --

Justice Byron R. White: And -- but what if the union doesn't agree with the Board of course and if it goes in the court once the arbitrator's award for it anyways, so what does a court say?

Mr. Cox: But, the court -- if the Board has made an order to bargain with the Federation, the other union, the court would not order the employer to disregard the Board's command that would take proceedings.

But until the Board has made such a command, it would seem to me quite open for the arbitration matter to go ahead in accordance with the contract that everybody promised.

Justice Hugo L. Black: I -- I don't quite understand that -- do I understand you saying that when you see in advance, submitting to arbitration will bring about an order against the company or union, commit an unfair labor practice that they have to wait until this arbitration occurs and then go to the Labor Board in connection with it, if not, if that's true, I wouldn't be better to go there first.

Mr. Cox: Because -- I would have to quarrel with Your Honor's statement.

I don't think when sees --

Justice Hugo L. Black: I might not have understood what you said?

Mr. Cox: I didn't mean to say that if one saw in advance that the order would require the company to commit an unfair labor practice that nevertheless you would go to arbitration and make such an order.

It's uncertain what the order will be.

It's uncertain what the labor Board would hold.

And under those circumstances, it seems to me that it is an obstruction, an interference with the normal processes of industrial relation for somebody to come in and say there's one chance in 50, maybe one in 100 or one in two, that this will result in an order to commit an unfair labor practice.

Justice Hugo L. Black: Suppose it does --

Mr. Cox: But the chance is --

Justice Hugo L. Black: Suppose they do order him to try the court, it his people say he's got to do that under the arbitration of the Board that, would the court have to inform them?

Mr. Cox: If the award tells him to commit an unfair labor practice --

Justice Hugo L. Black: You don't have to use those words.

Mr. Cox: Well, but the court can't know what the Board would decide unless it uses words that tell him to do something that is an unfair --

Justice Hugo L. Black: Well --

Mr. Cox: -- labor practice.

Justice Hugo L. Black: -- my words were, tell him that he's got to go and compel these people not to join this union.

Mr. Cox: If -- if the order tells him to coerce employees in the choice of their union under such circumstances that that would be clearly an unfair labor practice then the court should not have to enforce it of course.

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

Mr. Cox: But the distinction I'm trying to suggest Justice Black, is that here, we have no reason to suppose not, none at all literally, that what the arbitrator's decision either way would require the company to commit an unfair labor practice.

Justice William J. Brennan: But, Mr. Solicitor I -- I'm rather confident that an order of enforcement would almost literally read, go comply with award.

That's --

Mr. Cox: Yes.

Justice William J. Brennan: -- all that we say.

Mr. Cox: But you don't know that complying with the award involves an unfair labor practice.

It may not involve an unfair labor practice.

Because the union maybe entirely right that there's no -- there's no reason to suppose that it involves an unfair labor practice.

Justice Byron R. White: Mr. Solicitor, don't we have these same problems under Smith anyway or other areas, don't we have it precisely the same -- these same problems assuming that the -- assuming that the question dismisses an arbitrable and the question, is it (Voice Overlap) --

Mr. Cox: Well I think --

Justice Byron R. White: If you base

Mr. Cox: I think --

Justice Byron R. White: -- in the contract, which is right on the Act?

Mr. Cox: I think basically it is the same.

There are -- I have to confess certain differences.

One difference that pressed is that this is a representation case, and those involved unfair labor practice.

I was -- it's speaking about the character of the -- who can decide this best.

I was really addressing myself to that.

Now, the other difference is that in the Smith case and in most to the cases that one thinks about in connection with the Smith problem, the Board would treat the arbitration award as binding.

Here, I am confident that it would give it weight if the Federation were given a chance to come in and didn't, I'm confident that it would regarded practically as controlling and that might happen.

But I cannot say in all honesty that the Board would hold it as binding on the Federation.

Justice Byron R. White: Especially, if it's a -- if it's -- looks like it's contrary to its own outstanding order, isn't it?

Mr. Cox: Yes, of course it does seem to me that anybody can say on these facts that it does look --

Justice Byron R. White: Not on these facts the kind of --

Mr. Cox: Well, one can imagine one but the cases that come up where the ones on these -- on these facts.

And the other point that I would suggest that this has in common with the Smith problem that I would have devoted time to -- if I have to spend so much time on question is that this case, well I think in all fairness, it has to do with a question of representation, is as a practical matter, indistinguishable from the work assignment problem.

And if there is anything that is clear about this case, it is that the company is altogether wrong in saying that work assignment problems can be settled between two unions under Section 9.

Indeed, it's that more than anything else that led me to be here because that would upset more other important enter union arrangements, and Board distinction worked out that -- argues than -- than almost any other case of this kind.

And my point is I don't think those cases hand in the practical day-to-day working out.

They made to be held up while somebody decides, is this a representation dispute or is this work assignment dispute.

They've been going to arbitrators for years.

They have a great bulk of them that satisfactorily resolved over that period and it's our view that the arbitrators should be permitted to continue.

Chief Justice Earl Warren: Mr. Hunt.

Argument of John F. Hunt, Jr.

Mr. John F. Hunt, Jr.: I represent the party who has put at his payroll by the uncertainties in this situation.

Well, the facts here are not in dispute.

There are few facts with which I would like to profess what I have to say.

We did not as in the case of the person in the analogy Mr. Cox made sell our house to two people.

We have a contract with IUE which incorporates by reference the Board certification and purports to do so.

We agree to recognize them for those units for which they have lawfully been certified by the Board pursuant to an election.

The Board determine unit which is set forth in the appendix to the agreement at the Baltimore Works, specifically exclude all salary technical workers.

We bargained with the Federation also on the basis of -- of a certification and a Board determine-unit and an identical recognition --

Justice William J. Brennan: I understand it Mr. Hunt there was no -- no contestant unit determination herewith?

Mr. John F. Hunt, Jr.: Not to my knowledge, no.

The Federation unit excludes specifically all production and maintenance works, so we did not consciously sell our house to two people.

We quite meticulously kept these jurisdictional problems straight by insisting on Board certifications as a matter of company policy and by limiting recognition obligations to Board certifications and to the Board determine units.

Now, the electrical industry is quite unlike in most other major industries organized by the CIO.

The steel industry is entirely organized by the steel workers.

Electrical industry, there is a very terrible fragmentation.

There is the IUE, there is the old UE, there is the IBEW, there is an IAM and etcetera and -- and -- ad hoc unions such as the Federation which is quite a substantial union, but not affiliated.

The second factual point which I would like to make by way of propose is that this -- whether this is truly the kind of minor fringe group which the Board should not have to be bothered that one of employee does he belong here or there, is not certain in this case.

But the union itself alleged in its affidavit below in a sort of backhanded way that what we've done is take half of the production and maintenance unit and put it into this laboratory.

Now, that unit is about 500 people so there are 250 people here involved.

And -- and I don't think that is in the category of the minors fringe group that the Board shouldn't have to bother with.

I would like to begin my submission in a sense by saying what we don't disagree with.

The court below unquestionably had jurisdiction over the parties and over the subject matter of the controversy because the subject matter is an alleged breach of an agreement to arbitrate and that subject matter was clear -- clearly within the jurisdiction of the court below using the word jurisdiction in its technical census applied to courts.

We also agree that the fact that a cut controversy is cognizable by the Board under the Act and by the courts under 301 does not preclude that -- that does not militate against the courts having jurisdiction in the sense of the word which we first used it over the same controversy.

That is if you -- if you bargain to comply with your statutory duty and thereby, give rise in the union both to a statutory and a contract right, that contract right at least subject to the special circumstances, which I think exist in this case, can be enforce under -- under 301.

Now, Justice White referred to the similarity between this case and Smith-The Evening News.

The concurrency of jurisdiction as between the Board and the courts represented by Smith-The Evening News is a currency as to a claim that an employer has discriminated against an employee because of his union affiliations or associations.

It's an unfair labor practice complaint under 883 which is also brought under a contract and contracts typically agree not to discriminate by reason of union membership.

Now, the decision of the court in Smith, might -- might employ a different expertise on the decision of the Board if the action were brought on unfair labor practice complaint.

The -- the conclusion of the court might not find the Board and vice versa in this situation of concurrent jurisdiction.

But if the court awarded back pay to Smith, the Board would certainly offset it against any back pay award it might enter under Section 8 of the Act and vice versa again as -- if the Board acts first in the case.

An employer can be exonerated by the Board under the statutory criteria and found liable by the court under the contract criteria or vice versa.

Now, this may create anomaly but it is not a disruptive factor in industrial relation nor does that it put the employer in impossible position.

All that's involved is money and the inconvenience of being forced to litigate the same underlying subject matter twice.

But it was noted in Smith that at serious problems arose of -- the propriety of the exercise of concurrent jurisdiction under 301 should not be considered foreclosed by the judgment in Smith and that's what's involved here.

It was -- did the fourth court below properly decline to exercise its jurisdiction under 301?

So far as remarks were made about the opinion of the court below and the reference to Interlake Iron, the opinion of the Court of Appeals below was a per curiam opinion Interlake had just been decided at -- in the inter-row between the argument and the writing of the opinion and they picked up the language from Interlake.

The opinion below which expresses the rationale we asserted is the appellate division's opinion which is not relying on dogmatic preemptions.

It's relying on the orderly procedures contemplated by the Act.

Now, the difference between this case and the -- the unfair labor practice case in the sense of a complaint of antiunion discrimination is -- is very considerable in the -- in the -- the Smith type situation.

You're dealing with allegations of employer misconduct.

You're dealing with the propriety of past conduct who was right and who was wrong in respect of this period in which a fellow of Smith wasn't paid and other people were paid.

Once you resolved who was right and who was wrong as to that past conduct, it doesn't make any difference whether the Court resolved it or the Board resolved it.

The controversy has been put to -- to rest.

Now, when the concurrency is between a question of the scope of a Board determine unit and the breach of a recognition obligation on a collective bargaining agreement which incorporates by reference that Board determine unit, when the frost of the grievance is to seek an enlargement of representational jurisdiction, the situation has entirely different because the adjudication is not going to be an adjudication of who was right and who was wrong in the past in any real sense, it's an adjudication of status who is entitled to represent these people.

And the adjudication of status has continuing effect in the industrial relations involved.

It affects all rights and obligations in respect of IUE, all rights and obligations in respect to Federation, all rights and obligations in respect to the employees.

The employees' rights and obligations in respect of ourselves, in respect to the union involved.It even affects third-party unions not yet heard from.

If the arbitrator improperly includes this group in the IUE unit under Section 9 stand and we fail to deal with Federation in respect to this group and deal with the IUE respectively, we think that fringe group is up for grabs by any other union.

That might is -- is not protected, we are not protected by 8(d) (4) (d) under those circumstances.

So when status adjudications are involved, we think that serious problems do involve -- do arise.

Now, the fact that are problems, it doesn't mean that that we carry the vague here.

It does mean that the -- the problems required that the purposes, policies and structure of the entire scheme of the Act be taken into account in construing and applying Section 301 here.

Now, Section 301 is not an independent categorical imperative in the Act.

It embodies a policy favoring arbitration, but it is not the only policy in the Act.

There are many coordinate policies in the Act.

And I take it -- Mr. Cox agrees those policies maybe relevantly discuss here.

We disagree as to the weight to be given to -- to the balancing of advantage and disadvantage in this case, but they are properly before the Court.

And one of the main charges put against us is that we are dealing with speculative possibilities and speculative problems, and speculative injury.

In other words speculative is used as an epithet there.

We cannot guarantee that anyone of the many, many undesirable consequences that couldn't secure actually will ensue.

The question isn't whether any or all of them or each of them is inevitable if this goes to arbitration.

The question is what is reasonably foreseeable as a practical matter?

Are we to be put out our peril because the harm we talk about, respective harm we talk about is not inevitable?

We should not be put at our peril for having done everything the Act seems to have required of us.

We bargain with unions that represent our employees.

We recognize them and agree to recognize them for the units for which the Board determined.

We carefully eliminate -- limited our contract obligations.

And why should we -- what -- what -- where do you distill the peril that we're supposed to be exposed to here?

You can't distill it from any other section of the Act and I don't think you can distill from Section 301.

Justice Byron R. White: Might you have taken this for the Board Mr. Hunt?

Mr. John F. Hunt, Jr.: Yes sir we -- we -- we might and our answer to that is that we are satisfied with the status quo that does not indicate a lack of neutrality.

We are satisfied with the status quo.

We think if there is to be a change in the status quo, it is not incumbent upon us to go before the Board to clarify these unions.

Justice Byron R. White: You mean there's no necessity from interfere as yet (Inaudible)

Mr. John F. Hunt, Jr.: That's right.

That the union wants to seek us to change the status quo, they bring arbitration against us.

We could run right around to the Board the minute they brought this suit and I don't think we'd be her today if we did.

Justice Byron R. White: You don't -- you don't -- you don't think the Board with any in a situation like this would defer and see what they're arbitrating?

Mr. John F. Hunt, Jr.: I hope -- I hope it would not and -- and the extent which of -- (Voice Overlap) --

Justice Byron R. White: You don't -- you don't take it would --

Mr. John F. Hunt, Jr.: No, no and -- and --

Justice Byron R. White: And even if the arbitrator decided it, that you could go to the Board -- that -- and you -- you would free to go to the Board and have them decided differently or -- or at least try to get the Board to decide it (Inaudible)

Mr. John F. Hunt, Jr.: Well, our posture before the Board would be something different than disagreeing with the arbitrator's award.

Our posture before the Board would be --

Justice Byron R. White: Maybe this outcome violating (Inaudible)

Mr. John F. Hunt, Jr.: As a stakeholder of these jobs or this place as to where the Board would have to decide what did we mean in 1955 when we entered this union -- union order?

As the situation changed in respect to gap classification, in respect to proximity of facilities, how many people are involved?

Are there so many people that we should merely clarify the mineral of anybody's unit, but we should hold an election perhaps the self-determination like, perhaps in this case has -- as -- as recently occurred at a -- another form more location in -- another resting house location in Baltimore.

The fringe group constituted so many people that the Board said, “We create a third unit here from either units has a trade in circumstances, a third unit, self-determination for that unit.

Justice Byron R. White: Wasn't the major of the burden on you simply if you want to avoid arbitration and go to the Board (Inaudible)

Mr. John F. Hunt, Jr.: Why we should we have that obligation?

Justice Byron R. White: Well, I know but it is -- I'm just to ask -- as a matter of fact, isn't this really the major burden of -- if -- if -- that your choice is either arbitrative, go to the Board?

Now, you could -- you avoid, you say, he would be here today if you did not go to the Board?

Mr. John F. Hunt, Jr.: I believe that so --

Justice Byron R. White: Isn't this really the major of the burden which the suggested rule is holding -- which the Board's position?

Mr. John F. Hunt, Jr.: Your Honor that same question could've been asked with Mr. Sigal, but --

Justice Byron R. White: I agree -- I agree.

Mr. John F. Hunt, Jr.: I don't think we're fighting here about who should go to the Board first.

I think we're fighting here about whether 301 can be construed and applied to require a court to exercise its jurisdiction under these circumstances.

Now -- and I think we can measure this case or test this case in terms of -- of two assumptions and I think Mr. Sigal is (Voice Overlap) --

Justice Byron R. White: You say -- you've said that the Smith were rational, this one of the cases where serious problems created.

Mr. John F. Hunt, Jr.: Right sir.

Justice Byron R. White: And I think, are no more serious than it is serious to require either you or Mr. Sigal will go to the Board.

Mr. John F. Hunt, Jr.: I -- I don't see where the union has the right to force us into the Board because as a man's arbitration of something that has no business before a bilateral contract arbitrator.

Justice Byron R. White: (Voice Overlap) -- they say that they don't see why they should have to go the Board and when you promise to arbitrate, is that this kind of a dispute?

Mr. John F. Hunt, Jr.: Your Honor I -- I don't think there are here to force us to in -- into the Board.

I think there here to gain something, and I think they're here to gain more than a metaphysical value that adheres in having rights determined as contract matter as distinguished from a statutory matter, after that metaphysical advantage of --

Justice Byron R. White: (Voice Overlap)

Mr. John F. Hunt, Jr.: -- contract determination theory after representation jurisdiction.

Justice Byron R. White: Which they think they can get from the arbitrators?

Mr. John F. Hunt, Jr.: That's right.

That I'd assert as an opinion, that's not the fact of this case.

Now, I would like to get down to the real -- who -- to the question of who is talking about reality when we talk about harm.

Assuming there is an IUE award favoring -- an arbitrator's award favoring IUE on this controversy, is it realistic to think that no consequences whatsoever will ensue and I think this goes to Your Honor's question there?

Is it unrealistic to think that IUE will seek enforcement of the award if we decline to imply -- comply with it?

Is it unrealistic to think that Federation will acquiesce in it?

Well no will decline to act acquiesce in it and will seek to vindicate whatever rights it feels that has under its contract or under those statutes.

Now, it has been suggested that it is realistic to assume that Federation may acquiesce in this because Federation had stayed out of this case from the very beginning.

As a matter of legal counseling, Federation silences the precise prescription for a person who does not intend to be bound by what is transpiring here and would not intend to be bound by what may transpire before an IUE-Westinghouse arbitrator.

Is it unrealistic to think that present engineering laboratory employees who, if IUE is successful, maybe laid off or find themselves represented by IUE contrary to their wishes, will seek some sort of redress either through their existing union, Federation or through Board proceeding?

We don't think we are dealing with unreality and with speculative problems.

Arbitrators themselves who are very familiar with what's realistic in industrial relations have spoken in closely analogous context on this.

Arbitrator Schadler in a recent decision in Crown Cork & Seal, in concluding that he had no power to order a rival union to become a party to a collective bargaining agreement arbitration involving a jurisdictional dispute, said that in light of the employer's dilemma of situations such as this, a three-party proceeding binding on both the unions and the employer is the ideal solution.

Was the dilemma he spoke of a fantasy of his imagination?

Was he recommending a solution to a non-existing problem?

Arbitrator Schalder Hiley has said in the Remington Rand case, another recent case that N.L.R.B. is the logical place for the re -- resolution of what is an inherent representation conflict articulated in the grievance sought to be arbitrated under a collective bargaining agreement.

I'm sure he was not wasting his logic on a fictitious difficulty.

In the view of arbitrators conversant with the realities in this situation, it is petitioner and not respondent who fails to face up to reality here.

The problems and dilemmas we cite are quite real.

Parenthetically, these arbitrators' views of this matter are not irrelevant to the proper construction of 301 because it would seem that in their view or at least in the view of the better arbitrators, bilateral collective bargaining arbitration in these three-way disputes does not -- is not a useful tool and it does not -- it is not properly employed in this three-way situation.

Now, that -- that's sort of a basic conclusion of a lot of good arbitrators, and that's really in a many respects of the heart of this case.

Now, we say that 301 is involved and -- and we go back to Lincoln Mills as to what 301 means.

Now, Lincoln Mills said that 301 was a mandate to the courts to build in the old common law methodology as it were a -- a corpus of federal labor contract law and that in that building, and this was expressly noted in Lincoln Mills, you will borrow policy emanations from other sections of the Act.

Now, they must have mean policy emanations other than arbitration.

It weren't limiting the policy emanations to Sections 201 and 203 (d).

Now, in Steel Workers, the only policy emanation in -- in the -- from the Act that was to remain in the Steel Workers 301 decision was the policy favoring final and binding arbitration of employer union disputes.

Here, we have a case unlike Steel Workers which brings you back to what was said in Lincoln Mills.

You have to go and look at the policies of Section 7, Section 9.

And -- and those policies certainly who represents serious questions as to exercise of 301 jurisdiction here.

And that question on 301 should be in the spirit of Lincoln Mills and attempt to evolve a coherent and rational scheme for the rest -- enforcement of the -- of rights in the resolution of disputes looking to the overall purpose of Congress.

We think that -- that the question is, would -- that Congress express -- expressly or impliedly, a view that this -- that that 301 should be used to force arbitration here or if you could read Congress' tentative mind on this, would Congress have said, no this ought to go to the Board.

That's not a very orderly way to handle it and have an arbitration and then assuming IUE gets what it wants in arbitration to have all this other litigation and all this peril which we're here defending against, simply to vindicate what is called a contract right.

Now, we think that the -- the -- looking at the other policies of the Act that they very strongly impinge on -- on the decision in this case.

In Garment Workers versus the Board, the decision of this Court held that an employer in a union may not hoist representation upon employees through a collective bargaining agreement that the remedy given by the Board there was that the contract was to be set aside and recognition was to be withheld until such time as the union would certify in a Board election.

So far as the Board policy of the -- the statutory policies under Section 7 are concerned, this characterization dispute we have is between work assignment and representational grievance doesn't seem critical.

Whether IUE's aim in arbitration is to add Federation represented employees by taking a piece of the unit or to take the work which requires the layoffs from the Federation seniority list and get those same people back onto its -- its -- doing a work under the jurisdiction of its unit.

The fact is that Federation will have fewer working members if IUE wins and IUE will have more working members if -- if IUE wins -- if -- if it wins its arbitration award.

Now, one objection to the applicability of Section 7 policies guaranteeing employees' rights and they are the -- another group of third parties not represented here is that the arbitrator might fortuitously arrive at the same result as the Board.

That is to say that the Board could agree with the union and could also agree that there are not sufficient number of people involved so that it would be inappropriate merely to clarify this fringing without another election.

But the Board isn't going to clarify this group in without another election, without being guided by the statutory criteria on -- of Section 9 which is a command to the Board to do as much as possible in shaping these units and enacting under Section 9 to implement the rights assured by Section 7, the employee right.

If the arbitrator felt very strongly that employee rights were being infringed here and that they're ought to be at self-determination election or something about the sort here, he has no power to order an election.

The contract arbitrator can only say as a matter of contract interpretation, you intended this or that.

Now, if he agrees with IUE, he's going to enter an award which will obligate us to recognize IUE in respect to this group.

But he can't -- if he enters any award at all, unless he concludes that it's not arbitrable, all he can do is interpret the contract.

The Court's decision in Garment Workers against the Board demonstrates that even good faith recognition is unlawful, if the union in fact does represent a majority of employees and in a -- in a -- in an appropriate unit.

So the reality is that absence of certification, an employer acts at his peril.

The respondent has historically always required certifications, not only because of solicitude for employee rights but to avoid this peril which we have a perfect right to do in which the Act accorded us the right to do and the procedures to do it.

Now, we have an important interest because as I say, I -- I believe there are literally 64 different unions that deal with respondent here and -- and many, many of the -- of -- of the -- of the plans that respondent have five, six, 10 unions in the same plant and we've got to be very careful in this area.

Now, I'm not telling you my problems that I should be telling to an arbitrator but I'm trying to point out that we very carefully limited our dealings with unions to certified units and we very carefully limited our contracts to certified units in haec verba.

If we are to be put to the perils which I think genuinely exist in this case, regardless of the fact that by slim chance they could all be avoided in the various mostly assumed circumstances.

What is the source of this peril to us?

You don't find the source of the peril in any other section of the Act, you can't find it in the agreement and I say you can't find it in 301.

I don't think 301 created the enforceability of arbitration as the highest value in our labor society.

Enforcement of contract rights has always been a high social value.

In -- in some cases, it has constitutional dignity in our society.

The courts don't rottenly enforce contracts that because of the value embodied in -- in the ancient phrase "pacta sunt servanda.”

They look to other social values, particularly those expressed in -- in legislation and -- and very frequently, courts refuse to enforce contracts.

Now, we have here a situation where the Act has many, many coordinate values and the reference is, what would Congress have intended?

And when we think there's just too much violence to all the other values of the Act to give very much weight to this (Inaudible) of contract right.

IUE says, "We have a contract right and we can't vindicate that contract right before the Board," I -- I think it should be conceded that they can get relief in a -- in a nine -- nine proceeding before the Board.

But -- but they say, "That's only going to be statutory vindication and we want contract vindication."

There isn't -- there isn't an important contract right here.

The contract was to be bound by the Board's decision.

The contract was to be bound by the Board orders so the contract right exist that can be articulated as a contract right but it is an important contract right when you measure it against the Section 7 rights, our rights to be free of harassment in inter-union jurisdictional disputes and all the other consequences that inhere in this situation.

Now, we are taken to test because we haven't articulated a proper doctrine to -- to be -- to be applied here.

We -- we haven't relied on the preemption cases and the terms of the Garmon case in the state federal preemption cases.

Now, we -- we have -- we appreciate that we can't ask the Court to rule that on these narrow facts and know more without opinion, this case was correctly decided.

There must be some rule of construction -- of 301 that -- that we are espousing here.

The -- it has been charged that any rule of -- of 301, any facet of 301 that we want enunciated here is going to give rise to bad faith litigation by employers.

I don't think that's a reason for saying 301 permits of no exceptions.

I don't think the fact that some employer may buy intricate inference upon a representation aspect of the grievance and then tried to bought 301 enforcement act.

This is not that case.

This is a case which does involve issues of representation.

Now, it's the function of the courts to see whether this is truly involved in grievances which are defended against on -- for this reason.

The appellate division below articulated the best we can do on -- on what we're talking about here.

The appellant division said, "Where the question of representation is direct and the question of contract breach peripheral, arbitration should be withheld indifference to Board procedures.

Whereas, if the question of representation is peripheral and the question of contract breach direct, arbitration should be preceded with notwithstanding the possible existence of Board jurisdiction over -- or an aspect of the controversy.”

Now, that isn't -- those are words direct and peripheral and they require judging, they require the lower courts to say does this directly revolve representation of an importantly involved representation.

But we just can't come up with a rule that doesn't involve some degree of judging.

Now, the exception to arbitrability or the enforcement of the arbitrability clauses which IUE talks about is barbed right out of the contract hornbooks.

The contract hornbooks say, "The contract is enforceable if the court has jurisdictional of the parties and if it is not an illegal contract."

Now, I think 301 meant something more than -- than (Inaudible) on contracts.

I mean, this is not the ordinary commercial contract which should be enforced if legal and if the Court has jurisdiction overlay of the subject matter.

301 contemplated a little more particularization in the old hornbook of contract enforcements and -- and the challenging thing in this case is how you mesh the policies in favor of collective bargaining arbitration, although the very real violence to those policies that seems to inhere in this case.

If it has to be done on a case-by-case basis that so be it.

But there is not a clearer case than the present case of a direct representational issue.

There is not a clearer case in the present case.

I don't know where to draw the line beyond the present case but this case has two certified unit, mutually exclusive.

This Federation -- the engineering lab employ people as a class voted in the Federation election and they did not vote in the production and maintenance collection.

And -- and we have -- we have -- are sitting in that status quo and we say if the IUE wants to change, it ought to go before the Board.

And -- and I -- I am -- I hope I was -- I -- I assume I guess, I was not responsive Justice Stewart -- Justice White but is it a sufficient answer to say that if we lose this case, we can go to the Board?

That does that give the union a right to win it?

I mean, the fact that we can go to the Board and -- and alleviate some of these consequences that adhere in what -- in the construction of 301 for which IUE speaks in this case.

I -- I don't think that -- that's -- that justification for construing 301.

Justice Byron R. White: The 301 (Inaudible) arbitration is kind of dispute.

Mr. John F. Hunt, Jr.: Well, you know Your Honor, our defense below at special term was two-fold.

We said we have not consented to arbitration but even if you construe the agreement as embodying that consent, we say that the Board process is ought to be differed to under these facts.

Now, the reason we said we did not consent was not because we were going against the -- the holding Steel Workers at all.

We said that we -- the agreement should not be -- should be viewed as not having embodied our consent to this because of -- of what shows on the face of the recognition clause.

It is not an irrational inference from the recognition clause which says, "For those units of employees where they can lawfully elect, in a lawful Board proceeding" I mean is it -- it's not irrational to say that we didn't intend to arbitrate that.

Now, the courts below did not decide this as a matter of whether or not the contract viewed as a whole should be construed as withholding our consent to the arbitration of this grievance.

They went directly to our second defense which was that conceding arguendo.

We've consented to this arbitration.

It -- it just isn't the right thing to do under 301, under all these circumstances.

So I -- I don't know that -- that the differences -- well, I have some ad hoc differences with certain things with Mr. Cox had said.

I think it -- it has become apparent that the principal difference between our position and the -- one -- one of the principal differences between our position and out of the United States and the Board, views which are reflected here is the weighing of these policy values and these disadvantages permits exercise of concurrent jurisdiction.

And that weighing is up -- of course to this Court.

Most of the courts below that have weighed this and I appreciate that the Second Circuit in the General Electric case was to the contrary.

Most of the courts below have felt that the balance tipped against arbitrability.

Those cases are cited in their brief.

There are a few particularly -- the -- not -- we have -- have a reply brief filed here and -- which I would not -- not to offer any written reply too.

But in some of the things set here.

These railroad adjustment cases aren't really applicable here.

The fact that you can be forced into the Adjustment Board with one union -- without the other union being present, you've got the same Adjustment Board adjusting these things so I don't' think those cases are comparable.

Mr. Sigal said, "The Board may deny him relief, may refuse to entertain a motion to clarify under Section 9," and then therefore, he's got to have this arbitration.

But Your Honors, if the Board refuses his motion to clarify, it's because there are too many people newly in this group to just clarify them in without any expression of their own wishes.

So if he's refused a -- a relief on a motion to clarify is because in the Board's view, the policies of the Act would be squarely offended by it by -- by the relief he seeks here from the arbitrator.

It's been noted that everybody who -- who's briefed this case agrees that it doesn't make any difference whether you call other work assignment grievance or a representational grievance but they agree for different reasons and -- and I -- I would not let to -- like the Court to think that that is completely irrelevant.

We say it makes no difference not because there aren't some work assignment disputes that that -- where there has been an agreement to arbitrate them, albeit between the employer and the union should not be arbitrated.

We say it isn't a question whether you call it work assignment or representation, you've got to look at the grievance.

Now, you've got to look at the grievance under Steel Workers Your Honor.

You can't (Inaudible) look at the grievance.

You at least have to look at the grievance to see if it's comprehended by the arbitration clause.

And while you're looking -- the courts are looking at the grievance, as this their function under Steel Workers, if they see all the elements we cite here, there's no extra burden to judging under 301 to say, "Union, you better go to the Board with this," this -- or our Congress did not intend that -- that bilateral collective bargaining agreement arbitration be the institution in our scheme to resolve this type of dispute.

It's just not a very felicitous institution to be used here.

It seems, and I infer this from the plain meaning of the Act that Congress intended the Board be the institution to resolve this type of dispute.

And I know that we have entered into a contract agreeing to recognize the union in respect to Board determined units and I know that we've entered into a contract agreeing to arbitrate claim violations of the agreement, but notwithstanding our agreement.

I say that if you read 9 (c), reading entirety of 9 and the whole scheme it creates, this question of unit scope was intended by the Board -- by Congress to be adjudicated by the Board because and this is an -- the most important aspect of this case.

It is only the Board that can bind us, the IUE, the Federation and all of employees affected and exclude all of the unions.

It's only the Board that has power to bind the whole country as it were and to vindicate the purposes and policies of other sections of the Act in this 9 (c) proceeding.

Thank you sir.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of John F. Hunt, Jr.

Chief Justice Earl Warren: Carey, etcetera, petitioner versus Westinghouse Electric Company.

Mr. Hunt, you may continue your argument.

Mr. John F. Hunt, Jr.: Thank you, Your Honor.

Yesterday Justice White asked whether the company's right to go to the board and to obtain a board adjudication of the controversy did not take a lot of sting out of what we said where the undesirable elements of bilateral arbitration, and thereby militate against a construction of Section 301 which we speak for.

I would like to elaborate on what I said yesterday, because I think that if there is such a mitigation, we are faced with a peculiar circularity, if the grievance is arbitrable, if 301 must be construed as my adversaries contend, and we go to the board, the day the 301 action has commenced, the board certainly would not enjoin the 301 action nor it would have authority to do so.

The court would not state a 301 action because of the reversal of this decision here now, and then we would proceed through the arbitration, and get an award, the IUE would get an award under this hypothesis and I think it is proper to assume for purposes of analysis that the board determination is contrary to the arbitrator's award, we then have the same conflict at that juncture that we have here.

One would think that the arbitrator's award would become nullified by a contrary board award, but the basis of Mr. Sigal's position is that that the arbitrator's award gives him a contract right which is heretically different from the board determination of a statutory right, but you cannot avoid the conflict.

Now, I think it was assumed yesterday that, of course, the arbitrator's award would fall against a contrary board award, but if this distinction between contract right and statutory right is valid, it is not entirely clear that the arbitrator's award would fall.

Now, the Congress did speak in the statute fairly directly on the subject of conflict between board determinations and determinations from any other source, not excluding arbitration and that section I referred to was Section 10 (a), I referred to it in my brief at Page 32; 10(a) –

Unknown Speaker: (Inaudible)

Mr. John F. Hunt, Jr.: Of the brief Page 32, Your Honor.

10 (a) which goes back to the Wagner Act provides that the power of the board to prevent unfair labor practices, matters cognizable under 8 shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement or otherwise.

Now, the omission of any -- here Congress is addressing itself the conflict and it talks only about conflict with an unfair labor practice concurrency.

There is no statement whatsoever to cover the situation of a conflict between a unit determination under Section 9 and a determination of the same controversy by some other means of adjustment established by agreement such as arbitration.

Do we infer from 10 (a) that the board's power over units is not paramount?

I think the board's power over units is the most unreviewable administrative determination that exists virtually in our law.

The board's discretion over units is one of the most unfettered agency discretions in our federal administrative system.

I think I infer that Congress could not even conceive of there being a conflict between a board-determined unit and a unit-determined determined by some other means of adjustment, agreement or a law.

I don't think Congress could conceive of this situation and had it done so, it certainly would have elaborated in 10 (a) when it addressed itself to the subject of concurrency and conflict.

From that I inferred that Congress did not intend that 301 be used to have an arbitrator review, or court makes no difference, review a board-determined unit and that is exactly what the review sought here concerns.

There is another aspect of this idea that the two proceedings can go along concurrently without doing any harm.

If we are wrong, we have no right to force the union into court under 301.

There shouldn't have been an action.

We should have just agreed to arbitrate.

We should've proceeded with arbitration.

Now if the harm, we say, should be avoided by affirmance here can equally be avoided by our going to the board and if the reason that is an -- would be an adequate answer is that the arbitrator may not proceed and avoid and resolve, I first referred to, do we have -- but because of reversal here, we go into arbitration; we don't force the union to go to court.

We go the board but to stop the arbitration, we ourselves have to go to court as well as to the board for declaratory judgment under 301 that the arbitrator should not be proceeding and therefore, should be enjoined from proceeding.

So I think you can't avoid the question of whether there is a conflict, whether the exercise of this concurrent jurisdiction presents a sufficiently serious problem that should not be permitted in the overall scheme of orderly adjustment of labor disputes.

Now if you --

Justice Byron R. White: (Inaudible)

Mr. John F. Hunt, Jr.: Your Honor, I completely agree with Smith.

In fact, the briefs below show that I stipulated the rule of Smith beginning in special term.

The unfair labor practice concurrency does not bar arbitration and I've stipulated that some special term before Smith.

Justice Byron R. White: Certification does.

Mr. John F. Hunt, Jr.: Certification is a different question.

Justice Byron R. White: (Inaudible)

Mr. John F. Hunt, Jr.: -- at least, and here where there are two outstanding orders which are report to be neutrally exclusive.

Now, another factor I would like to bring into this argument is we keep talking about arbitration and the reason why arbitration will be helpful here, it may induce the federation to acquiescence loss of jobs or people, whatever maybe involved.

It may be helpful to the board when the controversy ultimately comes before the board.

Now if you look at the agreement, the collective bargaining agreement, arbitration is the last step following a four-step grievance procedure.

The normal way to handle plant controversies is not to go to an arbitrator; it's to go to shop steward, supervisor, grievance and so on up to the national grievance level.

When the grievance procedures, which are highly favored by Congress, break down, when they don't work, then you go to arbitration, but if the union is right here and I think Justice Brennan perhaps had this in mind in one of his questions yesterday, well supposing we had agreed at the grievance level here, supposing we had agreed with the IUE's contentions and then transferred the workers or employees, we wouldn't have solved any problems because then the case would be here captioned federation against Westinghouse.

I mean we just can't agree at the grievance procedure, at the grievance level to this type of bilateral adjustment of a trilateral dispute; we just can't do it.

But in theory, if the arbitrator can do it in his award, we can do it as a grievance level.

Now as in the side, we do not have an umpire for the industry here.

We have arbitrators selected on an ad hoc basis on a AAA list, and I don't demean them at all, but I do object to the demeaning of the board's expertise in this area, and the reference to the board as an agency reviewing on paper records in Washington.

In legal theory, the decision is the board's, but there is certainly a reality that the initial decisional power is delegated to a hearing officer and they sit all over the country and they can go into plants and they do go into plants and they have full process over parties and over evidence which an arbitrator does not.

This contract arbitrator does not have full process powers over evidence let alone other parties and witnesses.

So it's the board hearing examiner that the arbitrator is competing with here, not the board itself and the board hearing examiner is certainly expert with the same kind of problem of job classification.

He is an expert on the board's Section 9 criteria, and they must be involved here because all these rights and relations depend on propriety of unit, an issue which can only be decided under Section 9 criteria.

Now if my adversaries are right, there is no exception to arbitrability here.

They talk about the one or two employee case, but I could talk about a case that came out of arbitration after my brief was filed, and I think it is a good case to consider here.

It is reported at this year's Daily Labor Reports, number 155 at Page D1 that's the October 7th.

DLR 195 Page D1 involves the UNIVAC division of Remington Rand.

The employer had a plan in Utica for which IUE, petitioner here, was a certified representative of production and maintenance workers.

It had another plant at a fairly close by town called Ilion at which IAM machinist union is.

It was a certified representative of production and maintenance workers.

It unilaterally closed down the Utica plant and consolidated operations at Ilion.

It offered all the Utica employees jobs at Ilion, but continued to recognize the machinist at Ilion in respect of all employees and putting those transferred from the IUE jurisdiction at the Utica plant.

IUE sought arbitration and the employer there and I would like to go back to steel workers, this Court said in steel workers, unless you bargain away your right to a judicial determination, you have it, but there is nothing wrong with letting the arbitrator decide arbitrability.

That's also, that would be subject to review on this award, but it's the difference in procedure here.

But that went to the arbitrator, but the employer contested on the grounds of arbitrability, not on the merits as we did in the 301 action involved.

Now here he concluded that the grievance was not arbitrable and he did not do so on the basis of legal precedent and feel bound by the New York Court of Appeals' decision here.

He didn't feel himself bound by precedent.

He said that it was non-arbitrable in his view, because of the simple fact that in Utica, there is a legally certified union with the exclusive right to represent all production and maintenance of employees of the Utica plant.

He said that any reasonable person would have to conclude that a verdict favoring IUE would constitute an attack on the certification scope of the Utica IAM unit.

Once this simple fact is acknowledged, it places the issue on proper perspective namely, which union is entitled to represent the transferees and under whose agreement all the rights and responsibilities be determined.

This is clearly a representation question and one for the NLRB.

I can appreciate the hardship involved here, but I note that in denying arbitrability of the grievance nothing in this opinion should be construed as prejudicial to whatever rights the union may have in the proper arena.

So he just made an arbitrability determination, and he said that his view as matter of logic and common sense, this was not an arbitrable grievance.

Now he is not bound by 301.

I don't have significant values, but arbitrators are, they are powered to rise under 301, but they are not bound by 301, but I think we have to have a common standard of arbitrability between arbitrators and the courts.

It shouldn't make any difference who determines arbitrability.

If you look at the Utica-Ilion situation, if you, as the contract matter said, IUE has the continued right to represent former Utica employees at Ilion in this merged production and maintenance unit.

It just couldn't work, it is just chaotic.

You can't have two bargaining representatives for the same group of employees.

It is a fundamental breakdown on the whole concept of collective bargaining.

I mean mine is the cornerstone of the act.

There's got to be an election district, an appropriate election, an election of a bargaining representative, and then the employer deals with the bargaining representative.

And you just can't have it unclear who represents whom in the shop.

Now that case is more dramatic than my case because we're not dealing with an entire plan; we're dealing with the engineering laboratory.

I'm not saying that this is a question of degree; I think it's a question of principle.

If the thrust of a grievance is the enlargement of representational jurisdiction, no matter what other labels you've put on, it should not be arbitrable.

Now, it has been said that everybody in this case agrees, it doesn't make any difference than what you call a grievance, and I agree with that too.

It doesn't make any difference what you call this grievance, but that does not mean that I'm taking the position that any work assignment grievance is arguable, as Solicitor General Cox gave the example of a run of a mill dispute in which the employer threw in the proposition, well this fellow is a supervisor anyway.

Now that doesn't deter arbitrability in that case.

If the issue truly is whether he is a supervisor, it is a status determination, which I would think would have to be made on the act, but I don't have to go so far in this case.

I say that the status of collective bargaining representative has to be determined by the board.

Justice Byron R. White: Mr. Hunt, you wouldn't suggest that you couldn't have a three-quartered agreement in a private resolution of the issue?

Mr. John F. Hunt, Jr.: Your honor, binding the federation under 301 would be helpful here.

Justice Byron R. White: Let's assume that --

Mr. John F. Hunt, Jr.: It would be, but it couldn't solve all the problem.

Justice Byron R. White: But let's assume that your collective bargaining agreement explicitly excluded these kinds of disputes, from your obligation to arbitrate.

Now this problem comes up and then you and the two unions get together and you have a private resolution of the matter, agree to how to dispose this case, it happens to vary from the unit, the resulting units happen to vary from those certified by the board.

Mr. John F. Hunt, Jr.: Did both unions agree?

Justice Byron R. White: Yes.

Mr. John F. Hunt, Jr.: If we entered into such an agreement, most of the problems I referred to would not occur, but the employees will disagree with it, not the union.

Justice Byron R. White: There would be no question then, and if you resolve this matter that it would be an enforceable arrangement, isn't it?

Mr. John F. Hunt, Jr.: Enforceable in the courts under 301.

Justice Byron R. White: Sure.

Mr. John F. Hunt, Jr.: Your honor, I need to say that if one of the three parties to that tripartite agreement wants to welsh, I think maybe the public interest requires that he be permitted to welsh.

Justice Byron R. White: To go to the board.

Mr. John F. Hunt, Jr.: Yes.

Yes sir.

Justice Byron R. White: Similarly, assume your contract specifically excluded this kind of a dispute from your obligation to arbitrate, and the same situation comes up and these are same union asked you to submit it to an arbitration, and you might think that well, I'll arbitrate, I suppose you could do it, you'd still be subject to be taken to the board by the other union.

Now you apparently disagree --

Mr. John F. Hunt, Jr.: 301 impose that risk on; we don't voluntarily assume it.

Justice Byron R. White: You apparently disagree with the Solicitor General that arbitration in this kind of a situation is usually successful in producing some kind of an agreement from the other union.

Mr. John F. Hunt, Jr.: Oh, yes, I disagree with that.

Justice Byron R. White: As a matter of --

Mr. John F. Hunt, Jr.: If the federation would have lasted our arbitration agreement, why should they give up jobs, because of somebody says the IUE contract means that the federation has no rights here.

Justice Byron R. White: But you could take the approach that assuming that the arbitration doesn't bind anybody that anybody can go to the board and have the board's final say, you can still think that going through the procedure that is catalyst to try that resolution of the matter and just avoid all official -- which is the Solicitor General.

Mr. John F. Hunt, Jr.: I think there is a circularity in that, Your Honor.

Justice Byron R. White: Not circular, this means that your only answer is that you eventually get to the board anyway, if somebody wants to welsh, right?

Mr. John F. Hunt, Jr.: And I don't think Congress intended.

Justice Byron R. White: But how many times the people welsh when all three people had a grievance?

Mr. John F. Hunt, Jr.: Well, the employees, who are dissatisfied with the union's three-way agreement, wouldn't be welshing if they went to the board or a completely separate unit that says aha, there are no longer certified units here and under 8 (b) (4) (c), I can go after the groups over there.

We lose our 8 (b) (4) (c) protection and we haven't bargained away that.

Now if an employer has bargained it away as against unrepresented from a group of employees, maybe the same, all the same considerations don't apply, but as against another certified union, I just can't believe that we should have those risks imposed upon us because of the principles of Steel Workers favoring arbitrability where there were no countervailing policy considerations, but here there are just so many countervailing policy considerations but I think the best construction of 301 that maybe made realistically, this is a real problem, arbitrators have recognized it, Mr. Cox recognized it, this is a real problem and I would shape 301 and you have a blank check really on 301 on this issue so far, I would shape 301 and not to follow the hornbook rule that contracts are enforceable unless against public policy, because arbitration, obviously, isn't against public policy, but shape the rule and in this peculiar area of collective bargaining agreement, it's a unique agreement, you can't go to courtroom to get much information on collective bargaining agreements, but we are going to have to have some special rules.

Maybe we're going to have to have awhile to work out the lines here, but I say we are on the non-arbitrable side of the line or if 301 should be so construed, basically, I do not think Congress intended that bilateral industrial arbitration was a felicitous means for resolving controversies of this type because there is only one forum that can bind all parties and employees and implement the public interest reflected in various sections of the act and that forum is the board and the controversy of this type, one way or the other, are going to get to the board.

Now if you have an arbitrator's award, Mr. Cox has said, well, there is a problem in segregating out arbitrable relations.

If you let them both go forward in tandem, you're going to have that same problem of segregating out arbitrable aspects from non-arbitrable aspects at the award stage instead of at the threshold stage.

And it's just not an orderly procedure to have all these proceedings marching down and have the conflict come at the end of the road.

The simplest thing is let the board say who represents whom and then the particular arbitration; if IUE wins in the board, then the arbitrator is usefully employed to say, well, what to we do about job presentations now?

There's a higher skill level in this laboratory.

We're going to have to get the IUE agreement and contemplate these job classifications.

We're going to have to adjust the agreement into the new situation.

That's what an arbitrator can do here, but he will be doing this in vain if it isn't the representational jurisdiction to begin with.

So let the board first say what the unit is and who represents whom and then let arbitrators straighten out the ad hoc problems that flow from status determination, but don't let him make the status determination.

Justice Byron R. White: You don't think there is any chance that the board acting on an arbitrator's decision on that question like this would refuse to entertain?

Mr. John F. Hunt, Jr.: No sir.

Justice Byron R. White: Different from an unfairly practical situation?

Mr. John F. Hunt, Jr.: Yes sir.

In the contract bar rule here, there are two contracts barring each other; the contact bar rule nullifies each other.

Now board differed to arbitration in Reilys and more recently in Installation and Specialties, a new case, to say what the contract barred.

This is an interpretation of a contract between the union and the employer.

That contract precluded another union for a certain period of time.

Well, the construction on that contract put by an arbitrator is an elaboration which helps the board say whether the contract bar rule applies, but I know of no case where the board in this context has said that we're going to hold federation bound by what the IUE arbitrator said the IUE agreement meant.

It really had nothing to do with federation's rights.

Thank you.

Chief Justice Earl Warren: Mr. Sigal?

Argument of Benjamin C. Sigal

Mr. Benjamin C. Sigal: Mr. Chief justice and members of -- may it please the Court.

There has been a great deal of speculation about what the end product of a number of postulated alternatives maybe and I'm afraid the facts in this case have been lost in this cloud of speculation.

Now it has been assumed that this is a representation case in which the union is seeking to its largest unit that is not the fact and it is not in our view of representation case in any respect, but let us recall your attention, Your Honors, to the statements of the issue as set forth in the affidavit of the petitioner at Page 36 of the record.

Now there it is pointed out and nowhere denied in the answering affidavit of the company that what happened here was that after the contract, after the certification, after the contract was signed, the company for the first time moved the work, moved production and maintenance work out of the unit represented by the petitioner into the engineering laboratory and it is also asserted that they moved employees represented by the petitioner over into the engineering laboratory.

So you have here asserted and nowhere denied in the answering affidavits that there was a transfer of work, there was a work assignment which was alleged to be in violation of the agreement, that is nowhere denied so that must be considered to be the fact.

Therefore, there is, as we see it, unquestionably a work assignment dispute here and there may or may not be some questions as to whether the employees, who were transferred, were actually production and maintenance workers.

Now that is a question of fact.

There is no conflict between the units.

The record is clear.

The unit represented by the petitioner is the production and maintenance unit excluding salaried, clerical and technical employees.

The unit represented by the federation as the salaried technical and clerical employees excluding all production and maintenance workers.

So all we have here is a question of fact whether employees a, b, c, and d are production and maintenance workers.

There is no question of the unit.

The unit has been determined and nobody is seemed to be changing the unit.

Justice Hugo L. Black: Suppose they are not production and maintenance workers?

Mr. Benjamin C. Sigal: I am sorry.

Justice Hugo L. Black: Suppose they are not production and maintenance workers.

Mr. Benjamin C. Sigal: Well, if they are not production and maintenance workers, then the grievance falls.

Justice Hugo L. Black: Then who else is?

Then what would they be?

Mr. Benjamin C. Sigal: Oh, they maybe technicians, they maybe engineers, they maybe something other than production.

Justice Hugo L. Black: What contract would they be under?

Mr. Benjamin C. Sigal: I am sorry.

Justice Hugo L. Black: What contract would they be under?

Mr. Benjamin C. Sigal: They would be presumably represented by the federation because they are --

Justice Hugo L. Black: Under a different union.

Mr. Benjamin C. Sigal: A different union.

Justice Hugo L. Black: So what you have it seems to me, I am asking what I'd like to say, what you have here is dispute between two unions as to whether certain workers come under the contract of their union, each of those unions.

Mr. Benjamin C. Sigal: But, Your Honor, this doesn't flow from any question or doubt as to what the certification is; it's only a question with respect to whether the specific employees do certain work. Your Honor, it's just a question of fact.

Justice Hugo L. Black: Would the arbitrators bind the other union?

Mr. Benjamin C. Sigal: No, the arbitrator would not bind the other union if it wasn't the party, but the point is, so far as --

Justice Hugo L. Black: You wouldn't settle the dispute, would you?

Mr. Benjamin C. Sigal: Pardon?

Justice Hugo L. Black: You wouldn't settle the dispute.

Mr. Benjamin C. Sigal: We may settle it.

If the arbitrator says you have no grievance that settles it.

That settles it.

Justice Hugo L. Black: (Inaudible) plain order in everyday jurisdictional dispute?

Mr. Benjamin C. Sigal: No, Your Honor, it is not an ordinary jurisdictional dispute because in our view, there is no question about the -- in this situation, we have a dispute between the union and the company.

Now let us assume that there is a jurisdiction --

Justice Hugo L. Black: The other union claims that they ought to be on its --

Mr. Benjamin C. Sigal: The other union in this case --

Justice Hugo L. Black: I am not talking about their private opinion in this arbitration because they haven't.

They have not.

Mr. Benjamin C. Sigal: But in this case, the other union hasn't claimed anything; they have been silent, and we do not know, and we cannot speculate, we should not speculate that the answer of the arbitrator would be improper or would violate the law or would extend the unit.

These things are speculated, and this Court has recognized the confidence of arbitrators in labor disputes.

For example, in the Columbia Broadcasting System case, when it advised to board to go to arbitrators to learn how work assignment disputes are disposed off.

Justice Hugo L. Black: I don't understand why wouldn't the arbitrators get through and finished, and when still be left, question which had to be decided by somebody as to which one of these units, we call it units, I guess, unions, these people who are entitled work under their contract.

Mr. Benjamin C. Sigal: But that's not necessarily so, Your Honor, there might be no question.

Justice Hugo L. Black: You mean they might never raise it?

Mr. Benjamin C. Sigal: No, the arbitrator might decide that there is no valid grievance and dismiss the grievance.

Justice Hugo L. Black: But what if he decides that there is though?

Mr. Benjamin C. Sigal: If he decides that the employee should be transferred, well, now in that case, if the arbitrator decides that the work should be transferred, then if this is not acceptable to the other union and it may well be acceptable, we don't know that.

Justice Hugo L. Black: It's not usually, is it?

Mr. Benjamin C. Sigal: Well, we don't know that as per to the merits of this grievance, we're not supposed to enter into the merits of the grievance, Your Honor, and it seems to us that at this stage, the undenied assertion of the petitioner should be accepted.

Now in the event that the employer can in some fashion create an unfair labor practice out of this, then anxiously the other union does object, it can, of course, file a charge.

Now, the fact that there is this outside --

Justice Hugo L. Black: And what effect would the arbitration have if it did?

Mr. Benjamin C. Sigal: Then the board would consider it, Your Honor.

Justice Hugo L. Black: Would it have any effect; the arbitration--?

Mr. Benjamin C. Sigal: It might have a substantial effect –

Justice Hugo L. Black: How?

Mr. Benjamin C. Sigal: -- insofar as the board's own action is concerned.

Justice Hugo L. Black: You mean it might influence the board?

Mr. Benjamin C. Sigal: Of course, and this is what the parties agreed upon.

They agreed upon the procedure to have an arbitrator decide these issues for them, all the issues.

There is no exception in this agreement, Your Honor.

So far as this problem is concerned, it's an unqualified agreement to arbitrate and there is nothing in the record to suggest there was any limitation on that right to arbitrate including that section on repetition.

Justice Hugo L. Black: What you are saying, as I understand it here, they agreed to arbitrate anything whether their arbitration accept it or not.

Mr. Benjamin C. Sigal: Absolutely.

Even if it wouldn't settle it that's what they agreed upon.

Justice Hugo L. Black: And even if there's still that same old perplexing problem left for the board or as court as somebody else to decide --

Mr. Benjamin C. Sigal: We don't know that that problem would exist, Your Honor.

I submit that what the company is seeking to have this Court to do is to emasculate the whole line of decisions of the Steel Workers trilogy and all our cases with respect to the rights of the employee of the union to bargain its opportunities under Section 7 to bargain.

If we set aside the Ryan Retail case in which this court said that it would not – that Section 9 does not quantify Section 301.

It would set aside the Arkansas (Inaudible) case in which the Court said that it is not necessary to go to the board to get certification that the parties can agree themselves on the certification.

And in that respect, the respondent's case is even weaker than in the case as unfair labor practice because only the board can decide whether an unfair labor practice has occurred, but the parties under Section 9 can themselves determine what the union is and the board will accept the party's determination even if that determination nullifies the board's own decertification.

Thank you.