NLRB v. ACME INDUSTRIAL CO.
Legal provision: National Labor Relations, as amended
Argument of Norton J. Come
Chief Justice Earl Warren: Number 52, National Labor Relations Board, petitioner, versus Acme Industrial Company.
Mr. Norton J. Come: Mr. Chief Justice and may it please the Court.
This case is here on a writ of certiorari to the Seventh Circuit which denied enforcement of a Board order requiring the company to furnish certain information to the union which the union requested in connection with the processing of grievances.
And the basic question presented is whether -- where the collective bargaining agreement between the parties has a standard type grievance and arbitration procedure which I will detail in a moment.
This necessarily has the effect of channeling all requests for grievance information into that procedure and thereby preempting the power that the Board would ordinarily have to remedy refusals to furnish such information as an unfair labor practice under the National Labor Relationship Act.
Now the underlying facts are relatively simple and maybe summarized as follows.
In April of 1963, at the conclusion of a strike, the company which is a manufacturer of tools and metal products in Chicago and the union, Local 310 of the autoworkers entered into a collective bargaining agreement covering the production and maintenance employees at the company's Laflin Street plant Chicago.
The company has several other plants in addition.
There are two substantive provisions of the contract which are relevant here.
There is Article 1, Section (3) which is set forth at page 96 of the record, which is the so-called subcontracting clause.
Under this clause in relevant part, the company agreed not to subcontract work which is normally performed by employees in the bargaining unit where this will cause the layoff of employees or prevent the recall of employees who would normally perform this work for the company.
The second clause is the so-called work transfer clause which is Article 6, Section (10) set forth at page 102 of the record and that provides that in the event the equipment of the plant or of any department is hereafter moved to another location of the company.
Employees working in the Laflin Street plant were subject to layoff or reduction and classification as a result of this transfer but have a right to follow the machinery to the new location unless of course there is a collective bargaining agreement at that location that would provide otherwise.
Now in addition to these two substantive provisions, this contract also contained a procedure for the processing of grievances which is set forth at pages 98 to a hundred of the record which is a first of all a grievances defined as a difference of opinion with respect to the meaning and application of the terms of this agreement.
And then you have three steps of the grievance procedure and if the grievance is not settled at the end of the third step, then the union has a right to take it to binding arbitration.
And the arbitration clause which is set forth at page 100 of the record again points out that the arbitrator's authority is limited to the interpretation of the terms of this agreement which ties in with the way the grievance is defined which I pointed out earlier as being a difference of opinion with respect to the meaning and application of the terms of this agreement.
It should also be pointed out that the subcontracting provision which is at page 96, the substantive terms of which I read specifically states that violation of the above, namely the subcontracting clause will be subject to the grievance procedure.
Now, in January of 1964 some months after this contract was executed, the union discovered that machinery was being moved from the Laflin Street plant.
And there was no dispute in the record that machinery was being moved.
Union stewards asked the foremen why the machinery was being removed and where it was being relocated.
Because under the work transfer clause if it was going to another plant of the company, the employees here of they -- or losing jobs a result of this had a right to follow it.
Also, if the machinery was going to some other plant which would then be doing production work that this plant was doing under the subcontracting clause, employees who are -- or affected or were in layoff would have a right to grieve about that.
And I might add that the record shows that during this period it was not only the machinery being moved but you had in layoff a substantial number of employees.
It fluctuated from 35 at one time to as high as 70.
Also you had employment dropping in the plant, it was a 190 at the end of the strike and it got down to a 115.
So there was some basis for the union's suspicions that something was occurring here.
Justice Hugo L. Black: Does the company have other plants Mr. Come?
Mr. Norton J. Come: The company had other plants in the area.
This contract however covered only the Laflin Street plant.
So the union stewards ask the foremen why the machinery was being removed and where it was being relocated.
The foremen said they would have to check it out.
They went to the industrial relations department and then they came back with the answer that since there had been no violation of the contract, the company was not obliged to furnish the union with any information.
This occurred several times, several different foremen got the same response.
The union then invoking the contract grievance machinery filed 11 grievances charging that the company by removing machinery from the plant had deprived the employees of job rights and employment in violation of the subcontracting and work transfer clauses of the contract which I outlined at the outset.
Without the information understandably the union couldn't get too far in the grievance procedure.
So in April of 64, while these grievances were pending some on the first step and some on the second step of the grievance procedure, the president of the union wrote a letter to the company which is set forth at page a 124 of the record requesting five specific pieces of information, information as to the date on which each piece of equipment was moved from the plant.
The place to which the equipment was moved whether it was a facility owned or controlled by the company.
The number of machines or equipment moved.
The reason for the move and whether or not the machinery was being used for production purposes elsewhere.
The letter concluded with the statement that this information is essential to the union for the servicing and administration of the current contract.
The company flatly declined the union's request in a letter at page 125 of the record stating among other things that the union had available all the information it needed and that its questions were indicative of officiating and harassment expedition.
Well, the union thereupon filed an unfair labor practice charge with the National Relations Board alleging that the company's refusal to furnish this information constituted a refusal to bargain collectively in violation of Section 88 (5) of the National Labor Relations Act.
Justice Byron R. White: Well, Mr. Come with that letter of the company accurately as saying that no matter what we're doing, no employee is being laid off, no employee is being discharged because there's no basis for a grievance?
Mr. Norton J. Come: I think that that is -- that is what they are saying however, our position is that that goes to the merits of the grievance and not to the union's right to obtain information.
The information, in fact verified this -- the union might not process the grievance further.
Justice Byron R. White: Well, you're taking the position then that even if no employees were affected it's nevertheless an issue whether that the refusal to supply the information constitutes an unfair labor practice.
Mr. Norton J. Come: Yes, Your Honor.
Justice Byron R. White: Even though the arbitrator might reach the conclusion that under the agreement there's no violation of the agreement because the no employees are affected.
Mr. Norton J. Come: That is correct, because the union first of all thought that there were some employees affected.
That is an issue of fact for the arbitrator.
Secondly, under the subcontracting clause as I indicated at the out set there were employees in layoff and they would have a right to be recalled from the layoff if there were illegal subcontracting going on.
Justice Abe Fortas: And I supposed all that this assumes is that the Board has jurisdiction order that information be given to the union as ancillary to a grievance -- to the grievance procedure.
Mr. Norton J. Come: That is correct Your Honor and that is the question that I intend to get to --
Justice Abe Fortas: Because I suppose when that -- can I ask you, is there any doubt that the Board has a power to order a company to give the union information as ancillary to collective bargaining?
Mr. Norton J. Come: No, there is no doubt about that and I think we can start with two principles as to which there is no doubt.
(A) That the duty to bargain imposed by Section 8 (a) (5) and 8 (d) of the Act extends beyond the mere negotiation of a collective bargaining agreement.
It applies to the administration of the agreement as well.
The second principle that -- well, we can start with is that ordinarily the duty to bargain comprehends the obligation to furnish information that is relevant to the discharge of the union's bargaining function.
Be it -- they admitted -- be it a negotiation of the contract or the administration of the contract.
The problem here is whether or not it can properly be said that when the parties, the union and the company have negotiated a collective bargaining agreement that sets forth a grievance and arbitration procedure such as we have here which is limited to questions of interpretation arising under the agreement.
It can be said that they have not only channeled the substantive grievance to arbitration but also information request that are relevant to the processing --
Justice Abe Fortas: Can I clarify this for myself in a kind of a simple way.
Let's assume that these were -- clearly everybody agreed that what's involved here is a grievance, nothing more.
Then would the Board have jurisdiction order that the company give the union, information related to that grievance no question as to -- it's being possibly relevant to collective bargaining.
Mr. Norton J. Come: I think that it would Your Honor and I think that's the -- that is this case is, as we view it because as I will attempt to show although the company in it's brief attempts to raise some question as to whether this is really a grievable matter under the contract.
I think it's perfectly clear there is not question that in this case the matters complained of are grievable matters.
Justice Abe Fortas: So that we have here the hard question as to whether the Board has a power under the statutory scheme, the order of the company to give the union information relating to a grievance not for purposes of collective bargaining in either sense, either in the sense of making the agreement or the administration of the agreement.
Mr. Norton J. Come: That is correct with this footnote that I would interpolate that the processing of grievances is regarded as part of the process of collective bargaining.
So that in discharging that function, the union is engaging in collective bargaining.
I think the decisions of this court and of the Courts of Appeals have made that perfectly clear, Of course the parties can by agreement, a channel, certain rights and the question is whether or not the Board was warranted in construing this kind of a grievance procedure that way it did.
And I would --
Justice Abe Fortas: Well, let's cut right into the bone with that analysis because doesn't the statute say that the Boards for now in effect that the Boards have no jurisdiction to what, construe the terms of the collective bargaining agreement?
Mr. Norton J. Come: Well, I don't think that the statute says that in so many words and I might say that this issue is -- in our view is going to be presented in sharper focus in the case that follows.
Justice Abe Fortas: Yes.
But -- if you want on just the statute, Section 10 (a) of the statute which is set forth on page 37 of the Board's brief, says that the Board is empowered as here and after provided to prevent any person from engaging in any unfair labor practice affecting commerce.
This power shall not be affected by any other means of adjustment or prevention that has been or maybe established by agreement, law or otherwise.
Now I think --
Justice Byron R. White: Well, would that go so far Mr. Come, that this agreement had said on this very issue.
Suppose the parties have written a provision on this agreement and on this very issue the matter of the obligation of the company to supply information for the purpose of processing grievances shall be a matter exclusively for the grievance procedure and arbitration and that neither party may result to any other provision of law or otherwise.
Would you still be -- would you then acknowledge that or would you say (Inaudible) that even that wouldn't be bind or prevent the Board from processing an unfair labor practice?
Mr. Norton J. Come: I would say and start out with the outset by saying that that is a much more difficult case than this one.
My position --
Justice Byron R. White: I know but it was --
Mr. Norton J. Come: Yes, sir.
Justice Byron R. White: If you're reliance in 10 (a) --
Mr. Norton J. Come: Yes, sir.
Justice Byron R. White: -- is solid, then why wouldn't that apply even that?
Mr. Norton J. Come: My position would be that under 10 (a) the Board would have power but nevertheless find an unfair labor practice in the situation that you're --
Justice Byron R. White: In a theory situation.
Mr. Norton J. Come: In the situation you're presenting, yes Your Honor.
Justice Byron R. White: I'm -- I just wanted to add to this agreement the provision I had suggested and then give the very situation we have before us, you would still be here, you tell me?
Mr. Norton J. Come: I may not be here not for the reason that the Board would not have power but as Your Honor is aware, the Board as a matter of policy or discretion thus differ to arbitrable arrangements and adjustments and whether that sort of a situation would be an appropriate one for Board deferral would be the question.
I don't --
Justice Byron R. White: Is that discretional, that power?
Mr. Norton J. Come: That is correct, Your Honor.
That would be my position on that.
But in any event, we do not have that case here for the reasons that I would like to get to.
Before I do so, I just like to back up to make a -- to fill in a part of the chronology which I think is fairly obvious but I left off my factual account by saying that the union had filed the charge with the Board, a complaint was issued.
The Board found that the information was relevant to the union's representative function under the contract that there had been no waiver of the union's right to obtain such information in advance of arbitration under this type of grievance and arbitration procedure and the Board issued an appropriate bargaining order.
The Court of Appeals disagreed and essentially along the lines that you were suggesting Mr. Justice Fortas in the -- that's why we are here.
Now, let me get to the heart of our legal position here.
As I pointed out the grievance and arbitration provision here and the Board so found does not say anything about request for information.
It talks only about questions of interpretation or application of the agreement.
There is no provision in this agreement dealing with information.
In short it's the standard type of what this Court referred to in the trilogy cases as the standard type of grievance and arbitration procedure.
And therefore a dispute over information as such would not fall within the normal meaning of the terms -- questions of interpretation or application of the terms of this agreement.
Now, furthermore we submit and the Board found that it is reasonable and indeed would aid the efficient operation of the grievance and arbitration procedure to construe at least the standard type of arbitration provision is not encompassing information request.
And the reason for that is that information is needed at the outset of a grievance procedure to enable the union to determine whether the grievance is worth processing further.
As I pointed out, this grievance procedure like most of them has got three steps before you ever get to arbitration.
Arbitration is the last and most costly step in the grievance procedure.
Now, if the union gets the information at the outset, it may decide to drop the grievance because the information persuades it that there is no merit to the grievance.
Or it might be able to persuade the employer to adjust the grievance without embarking in the costly informal course of arbitration.
I was looking at some statistics of the federal mediation conciliation service and they pointed out that the average cost of a one day arbitration hearing just taking into account the cost of the arbitrator, the attorney's fees and of the court reporter leaving out such things as travel expense and things of that sort, came to about $1600.00.
Now, on the other hand to hold that the information request must be presented to the arbitrator means that the union or either -- well as the Second Circuit pointed out in the Sepner case, it will be -- it will have to play a game of blind men's bluff.
I mean, either they will have to take all grievances and arbitration which means that a lot of them are going to go there that the information would to be unmeritorious?
The union would have to grope through the arbitration proceeding itself they all prepared or it will just have to arbitrarily drop a lot of grievances that information would have shown to be meritorious.
The first form of the dilemma is only joined to make the grievance procedures which have already been criticized as being too cumbersome, plugged, protracted even more so.
The other form of the dilemma is going to mean that the union could not adequately discharge its representative function at least in an intelligent manner.
What I have been saying about the grievance procedure being plugged is not sheer speculation.
I think the union in its brief in the appendix to the brief points out that under the UAW General Motors contracts for example in the year of 1964, a 168,000 -- 158,000 written grievances were filed.
Now about 67% of them were settled at the initial step, 25% at the second step and less than 1% went to arbitration.
Now under that contract, they get the information in advance indeed the union has set up a screening procedure before they reached the final stage of arbitration in which they sift out many of these grievances.
So in the light of this practical considerations we submit that the Board is reasonable in concluding that the standard type of arbitration should not be construed as a waiver of the union's right to get the information in advance of having to go -- to arbitration.
And that such an interpretation far from being contrary to the difference which this Court in the trilogy has shown for the arbitral process would facilitate, enhance the arbitral process.
Now, I want to point that there's no answer to suggest that the union could go to an arbitrator in advance and get -- have him require the production of this data.
In most jurisdictions, the arbitrator does not have subpoena power.
Secondly even where he does and the company points out that he does under the Uniform Arbitration Act in Illinois, the arbitrator still sets to handle grievances that are unresolved by the earlier stages in the grievance procedure.
He is not the administrator of the machinery.
In other words, what I'm saying is that under this contract as -- is typical of most, you cannot go to the arbitrator until you have exhausted the other three stages of the grievance procedures so that the union would still have to go through what might well be the useless and burdensome act of going through three stages of the grievance procedure before they would be in a position to submit the matter to the arbitrator and ask him for a pretrial order.
Secondly, where you have a setup as you have here whether there's no permanent arbitrator and you have only an ad hoc one established as the need arises you have to go through the further formal step of getting one selected and all of that.
I see that my time has expired.
I just like to close with the point that the company in its brief discusses a lot -- a lack of merit to the grievance as I pointed out in answer to Justice Brennan, I think that is a question that goes -- the merits of the underlying grievance which they give perfectly agreed to submit to the arbitrator.
The information indeed might have resulted in their washing out of grievance.
If it has no merit and there is certainly no harm in furnishing the information to substantiate that point.
Chief Justice Earl Warren: Mr. Come, may I ask, has this been the usual procedure in recent years in the labor movement to do this?
Mr. Norton J. Come: I think the usual procedure as I understand it has been to supply this information.
I think that since this Court's decision in the trilogy cases, there has been some doubt as to whether or not the policy in favor of arbitration didn't extend so far as to cover even this information matter is and therefore we have been getting cases that have raised the problem.
And I think that what for the trilogy cases there probably would have been a little question that the information would be produceable independent of the fact that the substantive grievance would have to go up through the grievance procedure.
Chief Justice Earl Warren: Mr. Kovar.
Argument of E. Allan Kovar
Mr. E. Allan Kovar: Mr. Chief Justice, may it please the Court.
I was rather intrigued with the theory advanced counsel for the Board which apparently sounded something like what's good for General Motors is good for the nation.
I had assumed that that theory had been made unpopular some years back.
Fact to the matter is that the evidence alluded to in respect to General Motors being first brought forth in the interveners brief in this matter is totally irrelevant and inapplicable to the case here involved.
What is here involved is a small employer engaged in the manufacture of tools and metal products in the City of Chicago.
What is here involved is that somewhere for example between 1954 and 1956, this employer last used a chucker machine.
It was eight to ten years before the grievances been filed that we're involved herein that the member of the union last used this piece of equipment.
Justice Byron R. White: What did you call it, Mr. Kovar?
Mr. E. Allan Kovar: A chucker machine.
Justice Byron R. White: C-H-U-K-K-E-R?
Mr. E. Allan Kovar: C-H-U-C-K-E-R, I believe.
In 1964, the company removed this chucker from its plant.
Eight to ten years after it was last used by a member of this union.
The union of course knew that the chucker was removed.
This was not General Motors.
This was ACME Industrial where a little more than a 100 employees were involved.
And the movement, the removal of this piece of equipment last used eight to ten years prior was noticed by union officials and a grievance was filed.
One month later, the union with regard of this chucker as well as several other pieces of equipment wrote the company asking for the date it was removed, the location to which it was removed, the purpose of the removal and whether it was used for production elsewhere.
The case that we are dealing here amongst other pieces of equipment dealt with these questions with respect to a piece of equipment last used eight to ten years prior thereto.
A company demurred to that request of information.
And now close to three years later, we are here arguing whether or not this employer violated the federal labor law by refusing to tell the union where, when and why a piece of equipment was removed, a piece of equipment last used ten to 12 years ago.
With all due deference, I would note as applicable hereto (Inaudible) thought that absurdity is the privilege of no living creature but man only.
Chief Justice Earl Warren: Well, Mr. Kovar, I supposed though that in this principle as applied to your small company, it would also be applied to General Motors, wouldn't it?
Mr. E. Allan Kovar: Well, I think as this Court stated in the Truitt case Mr. Chief Justice and I quote, "The inquiry must always be whether or not under the circumstances of the particular case the statutory objective to bargain in good faith has been met so that what applies in the General Motor situation may or may not apply in the Acme Industrial situation."
And the study -- and each case must be as to the particular facts of the case whether the statutory obligation the bargain has been met.
Chief Justice Earl Warren: Well, do you mean that if the facts were the same in the General Motors case as it is in the Acme case that there would be a different rule?
Mr. E. Allan Kovar: Well, it seems to me the question poses and impossible situation while the Treasurer of Acme Industrial would no doubt enjoy status of being equal to General Motors --
Chief Justice Earl Warren: Oh, I'm not -- we're not --
Mr. E. Allan Kovar: General motors cannot be Acme Industrial.
Chief Justice Earl Warren: We're not talking about that but if the machinery was moved from General Motors under the same conditions that it's moved here, wouldn't the same principle apply?
Mr. E. Allan Kovar: Under the same circumstances, exactly yes.
Chief Justice Earl Warren: That's is all I want --
Mr. E. Allan Kovar: But there cannot be the same circumstances of course because the two companies are so totally dissimilar in size if nothing else that one would have to look in to the relationship with the parties.
One would have to look into the knowledge under the facts concerns as to whether this information was relevant to the union's bargaining position.
I think by looking at the questions here involved and looking at them with respect to this particular piece of equipment, we can reveal quite clearly I believe the total irrelevance of the information requested.
And the fact that that irrelevance was known by the company, the fact that the company knew that the union had all the information it needed to know whether there was any valid grievance or not.
Justice John M. Harlan: (Inaudible)
Mr. E. Allan Kovar: No, sir.
There were number of pieces of equipment.
One of them had been used two to three years prior thereto which was before the collective bargaining agreement involved had been executed.
Another had not been used during the term of the collective bargaining agreement.
Another had been -- two pieces had been removed but they have been replaced prior to the filing of the grievances.
Another had been used by employees in another classification although that work was still being done.
Another equipment, grinding and slotting type of work can be done on several different pieces of equipment.
In any case, not one piece of equipment which is removed resulted in the downgrading or layoff of a single employee and the union knew that.
Justice Abe Fortas: Did the company sent the union a letter and say, "In response to your request we call your attention to the following facts."
And then tell them what you've just told us?
Mr. E. Allan Kovar: Yes, sir.
The company wrote, replied to the union saying that as it understood the request for information, it related to Article VI, Section 10 of the contract which provision as counsel for the Labor Board has indicated to you, related to the transfer of equipment from the plant.
The company said in his letter, we understand this request for information relates to that provision and that provision cannot be involved with the removal of equipment because as you very well know, no employee has been laid off or downgraded.
Justice Abe Fortas: No, it's not what I asked you.
Now, I asked you whether the company wrote the union the facts.
You're telling us some facts here.
I'm asking you whether the company supplied at least that much information to the union.
Mr. E. Allan Kovar: I believe so Mr. Justice Fortas because the record shows that the union was aware, had the informations supplied to it by the company as to whether any employee had been laid off during the term of the agreement.
And as to whether any employee had been downgraded during the term of the agreement.
And the record attempted to show that the union knew this fact.
Justice Abe Fortas: But still, that wasn't what I asked you, I asked you whether the company supplied the union the information about this equipment or whether the company would -- it decided to stand on what it considered to be of strict legal rights, and then tell me, didn't give the union any information.
Mr. E. Allan Kovar: The union already knew the name of the piece of equipment be -- the request as for that so the company could not tell it, what it already knew there.
The union already knew the date that the piece of equipment had been removed so the company could not tell it when it -- need not tell it when it have been removed.
The company did not engage in useless acts.
It did not give the union information which they'd already had.
The additional union information which the company did not give the union and the reason why we're here was that information which the company felt to be totally irrelevant to the administration of the contract in which the company told the union it did not need because it had sufficient information to administer the contract under its terms.
Justice Hugo L. Black: Well, if the company didn't have some objections to this inform her.
I did objectives to tell them these things.
I don't quite understand it, I'm like --
Mr. E. Allan Kovar: The motivation of the company is indicated in the record and I can surmise a number of reasons.
But let me suggest this that where a union asked for information concerning the removal of a piece of equipment last used eight to ten years before the request, the company might well surmise that the information request was nothing but an attempt to get before the Labor Board.
As the company indicated in its letter to the union that what it felt, the company --
Justice Hugo L. Black: Well did you write them that or tell them that?
Mr. E. Allan Kovar: Yes.
Yes, Mr. Justice Black we did that.
And the letter so indicates which is in the record to this day.
Justice Hugo L. Black: That it wasn't relevant.
Mr. E. Allan Kovar: That is correct.
Justice Hugo L. Black: And that's all you ever told them?
Is it a secret yet, what it's about?
Mr. E. Allan Kovar: It's a secret to me where the relevance can be found through the information requested.
Justice Hugo L. Black: Is it a secret -- it is a secret now as to why the company objected.
Mr. E. Allan Kovar: Oh, I don't know that it's a secret.
I don't know that the matter however is one of this record.
Justice Hugo L. Black: Then why did you object (Voice Overlap) do you object to stating why, didn't you?
Mr. E. Allan Kovar: I can do so although the matter is not a matter of record before this Court.
The reason that the company refused to give this information was that knowing very well that the union had all the information it wanted and knowing that the union was requesting by way of its grievances the right to bargain concerning the removal of any equipment as is indicated in the record as is written in some of the -- specifically in some of the grievances at the union filed.
The company having already bargained that matter decided that bargaining was through for the term of the contract and it was not going to continue bargaining with the union concerning that matter.
Justice Hugo L. Black: But wouldn't tell them, even though -- I didn't hear it?
Mr. E. Allan Kovar: That's correct.
The question here involved is whether the employer is in violation of the law.
The question is not whether it would hurt the employer to give this information.
Now the fact to the matter is, that giving the union information concerning where equipment might go might well give the union an opportunity to attempt to follow whether it had any contractual right to do so and engage the employer in an organizational campaign elsewhere.
I don't believe that the employer is obligated under any provision of the law to supply the union with such information.
Justice Hugo L. Black: Do you believe they have avoided that by saying, we think you want this for bad purposes.
But we have no objection to telling them, you can't get us to abort and get the other trial.
Mr. E. Allan Kovar: There are a number of potential answers I presume which the employer might have given the union which would have not injured the union.
The question here involved is whether the employer violated its obligation to bargain in good faith by refusing to give the information which it knew very well was totally irrelevant to the union bargaining function.
It seems to me that that is the issue.
Justice Hugo L. Black: Well, would you (Voice Overlap) shouldn't it be assumed that it is relevant?
Mr. E. Allan Kovar: Not at all because it would seem to me that that would open the door to any request for information must therefore be given.
There has been no suspicion thus far that the request for information must be accorded that type of recognition.
Chief Justice Earl Warren: Did the union know where this machinery was transferred to?
Mr. E. Allan Kovar: The only thing the record shows as to that is that with respect to one grievance, the union president and vice president said that they knew where the piece of equipment was going and why it was going.
This was the only time that they raised the issue in any of the upper level steps of the grievance procedure.
The record still shows that.
The record also shows that that union president and vice president were present at the hearing and there was never any denial of that fact.
Chief Justice Earl Warren: May I ask you this, supposed there was a disagreement as there is in this case between the union and the company as to whether this is relevant or not.
I suppose there must be some procedure by which the union can have that question determined.
Would you mind telling us what that procedure is?
Mr. E. Allan Kovar: Yes, I would think so.
I think I would refer you to the statement of the national academy of arbitrators who indicated --
Chief Justice Earl Warren: Well, that isn't (Voice Overlap) -- that isn't the law. Can't you give us something better than a national academy of arbitrators?
Mr. E. Allan Kovar: Well, it would seem to me that their statement of what I'm going to say might add some substance to it.
Chief Justice Earl Warren: Well, is that all you have which -- because if that's all you're going to quote --?
Mr. E. Allan Kovar: Well, if I understand the question Mr. Chief Justice, is -- as to how the union might get necessary relevant information under the grievance procedure and I would submit to you that the arbitrators, the professional arbitrators who have been interpreting and handling grievances for a number of years know very well that when information is solely in the hands of a company that the burden falls upon the company.
And the company's refusal to give such information would lead to a decision contrary to the company's interest.
We are dealing here not with a litigious situation, a single situation of adversary litigation.
We are dealing with a continuing relationship between the parties.
Chief Justice Earl Warren: Well, how will -- how would they know what the facts were in order to enable them to determine whether they should litigate?
Mr. E. Allan Kovar: Well, as we go back to the case at hand, the union knew that the piece of equipment involved hadn't been used for ten years.
The union knew that the no employee had been laid off or downgraded as a result of the removal of that equipment.
The union knew that there are only two clauses potentially available to it.
One, which said not that the company agreed not to subcontract but would said if you will note that it was a company's policy not to subcontract or if normally performed by bargaining union employees.
Now if anyone can possibly say that a machine which had not been used for eight to ten years could be involved with work normally performed by bargaining union employees, I need that type explanation because I have not been able to see it in the three years of litigation in this case.
Chief Justice Earl Warren: Well, was that the only machine that's involved or those other machines that you mentioned to Mr. Justice Harlan, were they involved?
Mr. E. Allan Kovar: I was -- certainly they were and one of those --
Chief Justice Earl Warren: Well, why do you put it solely on the basis of a machine that hadn't been used for ten years?
Mr. E. Allan Kovar: Because the Board mad no distinction.
The Board's rule would apply to that piece of equipment as well as the others and knowing that the information requested was for all of those pieces, it became apparent to the employer what was being sought and I think it is apparent now or should be apparent now what the Board is seeking.
That any information related no matter how tenuously related to a contract provision it must be the information concerning it must be given to the union.
If you recall, I think that this Court said that any matter which is claimed to be a contract violation is arbitrable.
And if the term grievable is identical to arbitrable as it seems to me it must be that any matter which the union claims to be a violation to contract is grievable is arbitrable whether it would be a meritorious claim or not.
Now, it seems to me then what this Board is saying that any information which may be related somehow to a claim which may have something to do with the contract must be given.
And I see nothing in Section 8 (a) (5).
I see nothing in the National Labor Relations Act amended which would open to the union the doors of the employer's file for any and/or request of information that it might seek.
It seems --
Chief Justice Earl Warren: Well, if you are -- if the ten years inoperative machine had not been amongst the other machinery that was involved in the case, would your position be the same?
Mr. E. Allan Kovar: I think when we get to the second point which is a legal point, yes it would be.
I think the absurdity of the case however is revealed by the kind of factual situation were dealing with here.
Our second point is that any information which is related to the contract which is dependent for its relevance upon the contract should not be the subject of an 8 (a) (5) violation.
That what the parties bargained for was the administration and the interpretation of the contract according to the terms that they set forth and whether or not those terms provided for arbitration.
They've -- they determined a method by which the parties would settle their disputes during the term of their contract --
Justice William J. Brennan: Well, I gather by way of that --
Mr. E. Allan Kovar: -- whether it be by way of the 301 or arbitration.
Justice William J. Brennan: You mean by that then that what we were dealing with here was the transfer out of the plant of the equipment in actual use and being worked on by members of the union.
You would not have to -- by any of this information until that -- the arbitration status.
Mr. E. Allan Kovar: Under the force the National Labor Relations Act, yes Mr. Justice Brennan.
That would be our position.
Justice John M. Harlan: Isn't that all -- isn't the basic question here one of power.
Your position is that the Board has no power to treat this as an unfair labor practice, isn't that the essence of your position?
Mr. E. Allan Kovar: Yes, Mr. Justice Harlan that is the essence of --
Justice John M. Harlan: Because if you are wrong on that then the Board as a matter of discretion they don't say that under every circumstance, an information of this kind has to be given.
They've said in this particular case.
We think we have the power and in the exercise of our discretion, reviewing the facts, do you think this information should've been given?
Mr. E. Allan Kovar: Well, first --
Justice John M. Harlan: Do you have to stand or fall under the basic legal question, don't you?
Mr. E. Allan Kovar: I think not, under the facts of this particular case.
I think that the legal proposition would determine this case, yes.
But I think even if that legal issue were determined against us, it still would be the question as to whether or not under the circumstances of this case the employer refused to bargain in good faith.
That factual determination goes beyond.
I think the legal principle as to the union or the Board's power here --
Justice John M. Harlan: In the circumstance you'd have to send the case back to the Court of Appeals, do you?
Mr. E. Allan Kovar: Well, after this company has been in litigation for almost three years I would certainly hope that that would not be the result of this Court's --
Justice John M. Harlan: (Inaudible)
Mr. E. Allan Kovar: I think that the record will clearly show that this employer attempted in every way it could in the hearing before the trial examiner to get all the information concerning the relevance or more accurately the irrelevance of the information requested.
And that the general counsel upon whom the burden of proof falls in any unfair labor practice refused to consider that aspect and said no such allegations were being made.
To now attempt to put this employer in the position of going back what it attempted to do three years ago would seem to me would be a most unjust result.
I would think that in this particular situation, the only thing that is really happen in, say the last 20 to 21 years of the federal labor legislation is that this Court has indicated in no uncertain terms the desirability of parties' private problem determination and has indicated therefore example that arbitration is the process which the party should engage in.
That -- this Court also indicated in the trilogy cases as I recall it that under the guise of determining arbitrability, the courts may not determine the merits of a particular grievance.
It seems to me that what the Labor Board is attempting to do here is that under the guise of determining relevance it is in fact issuing a judgment as to how valid or how invalid a grievance is.
If it is not doing that, if the Labor Board is not doing that and if it is only saying that any request for information related to a contract provision must be given then I think that the Labor Board is throwing out the test of relevance for information is saying to you that as a matter of law, any request for information which may be related to a contract must be given.
And I submit to you that that request -- that that type of position has no foundation in the law and runs contrary to the type of relationship which the law has attempted to establish between union and employer.
Justice William J. Brennan: Mr. Kovar, in the question of power getting back to the colloquy of Mr. Justice Harlan, what is the significance to Section 10 (a)?
Mr. E. Allan Kovar: I believe that Section 10 (a) relates to the Board's power to determine unfair labor practices and the threshold question is to whether an unfair labor practice can be found to exist where the basis of the claim rest within the four corners of the collective bargaining agreement.
It seems to me that that initial threshold question must first to be determined before Section 10 (a) has any application whatsoever.
Now if for example under Section 8 (d) (4) where the definition of collective bargaining is given, if one were to presume that a union claim for an amendment of a contract were involved.
It might be settled, this is an unfair labor practice, their refusal to bargain under the definition to 8 (d)(4).
If the union were to claim that it was not attempting to amend the contract but under the contract in fact had the right to make the claim it was making then you would come to the question of the balance it seems to me between the Board's authority and the authority of the parties to determine their own private method of solution.
Justice William J. Brennan: Well, that --
Mr. E. Allan Kovar: And I would --
Justice William J. Brennan: -- that second sentence of Section 10 (a) is very broad though, isn't it?
That the power shall not be affected by any other means of adjustment or prevention that has been or maybe establish by agreement, law or otherwise, it's rather broad, isn't it?
Mr. E. Allan Kovar: Yes.
Yes, indeed it is but the question is as to whether that power exists.
Whether the power exist to determine that an unfair labor practice is involved where the issue is one of contract interpretation.
It seems to me that by saying the 10 (a) applies we assume a way the real issue.
Justice Abe Fortas: Is there anything -- can you think of any grievance that might arise between the company and the union in which the Board would have jurisdiction to order the company to supply information to the union on your theory?
Mr. E. Allan Kovar: I would think that in the event of a discharge of an employee that the union claim to be a violation of Section 7 and 8 (a) (3) that this would be an unfair labor practice charge to which the union would have the right to claim information without any regard to the collective bargaining agreement whatsoever.
I think in fact, the position that we take is that where information is relevant to the bargaining function without relation to the existence of the bargaining agreement that information falls under the general rules which have applied and that were relevant to the function and were needed and where there aren't affirmative defenses available then it would have to be given.
Justice Abe Fortas: Well, suppose a company moved out two thirds of its plant equipment and the union asked for information about that.
I -- I assumed that would be a grievance at the very least but if they get the -- company would have to supply that information?
Mr. E. Allan Kovar: Not necessarily I think of course that any union claim which claims a violation of contract constitutes a grievance.
I think that if there were no employees affected thereby, that the employer would not have to give information.
Justice Abe Fortas: Let say --
Mr. E. Allan Kovar: For example, this Court might take judicial notice when an employer is out on a strike, the customers can be lost.
And the record does not show as counsel for the Labor Board would indicate that employees were laid off at the commencement of this contract as an affirmative act.
The record does not show that the -- in fact those employees were not called back to work after the strike because of the lost of the work.
Justice Abe Fortas: Well, then what you are saying as I understand it is that there are some types of situations in which a grievance exist between the company and the union subject to the grievance procedure of the collective bargaining agreement.
That the nature of the dispute as such that also stands directly from certain provisions in the statute and then the latter cases, the Board processes are appropriate to require the company to give the union information.
Mr. E. Allan Kovar: Yes, Mr. Justice Fortas, I believe so.
For example, 8 (a) (1) interference, 8 (a) (2) domination, 8 (a) (3) discrimination, 8 (a) (4) interfering with the testimony or witnesses to a Board proceeding are particular prohibitions of the Act which whether or not covered by a collective bargaining agreement would nevertheless be cognizable by the Labor Board.
The Board would retain its power whether or not the contract has anything to do with that.
But 8 (a) (5) deals with a refusal to bargain and 8 (a) (5) it seems to me must involve two types of bargaining.
One, pre-contract bargaining and two, post-contract bargaining and it is our contention that post-contract bargaining is not the same as pre-contract bargaining that the parties do have the right to channel the collective bargaining relationship between them during the term of that agreement.
That that parties do have a right to determine both the substance as well as the procedure of collective bargaining during the terms of that agreement.
And if this not be the case, it seems to me that what the Board is trying to do in this and in the companion case is to declare that an employer may not act unilaterally even during the term of the contract unless that contract specifically allows it to.
And it seems to me what this Board is attempting to instill in the labor management relationship picture in this country is the idea that an employer may not act unilaterally without prior union approval.
And if that be the case then I say that the American industrial set up is in dire jeopardy.
This is not a totally unimportant case involving just a hundred employees to the extent that that issue is involved.
It involves all of American industry.
Thank you very much.
Chief Justice Earl Warren: Very well.