NLRB v. IRON WORKERS

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Argument of Norton J. Come

Chief Justice Warren E. Burger: We will hear arguments next in National Labor Relations Board against Local Union 103.

Mr. Come, you may proceed when you are ready.

Mr. Norton J. Come: Mr. Chief Justice and may it please the court.

This case is here on certiorari to the District of Columbia Circuit which denied enforcement of the board's order directed to respondent union local of the iron workers.

The case involves the relationship between two provisions that were added to the National Labor Relations Act in 1959, Section 8(f) which permits employers and unions in the building and construction industry to enter into agreements before employee has s been hired.

So called pre-hire agreements and Section 8(b)(7)(C) which regulates recognitional and organizational picketing via Labor Organization and in general terms the question presented is whether a pre-hire agreement entered into a pursuant Section 8 (f) privileges recognitional picketing via minority union which would otherwise violate Section 8 (b)(7)(C).

Now, the facts are briefly these.

In May of 73, Higdon Construction Company executed a contract with Glenmore Distilleries to erect the facility in Kentucky.

The contract required Higdon to use union labor in an order to obtain iron workers from respondent union.

It was required to sign an acceptance to the areawide labor agreement which the union had entered into with a multi-employer association.

The agreement purported to cover all the employees who performed iron work for signatory employers within the union's territorial jurisdiction.

It contained no provision requiring employees hired by the employer to become union members.

Union Security Clause, no provision requiring the employer to check off union dooms.

Higdon Construction performed the Glenmore job with some of its own employees who were nonunion and with some employees who were supplied by the union.

Unknown Speaker: But what did the agreement contain Mr. Come?

Mr. Norton J. Come: The agreement contained provisions establishing wage rights, welfare and pension benefits and working rules for these employees.

Unknown Speaker: But--

Mr. Norton J. Come: It did not have a Union Security Clause in it or a check off provision.

Unknown Speaker: Were there pension requirements or suppose there were no union members hired on a job.

would still have to contribute to a pension?

Mr. Norton J. Come: As I mean, the acceptance here you would.

Unknown Speaker: I see, thank you.

And would the board's position be any different if there were a union security clause in the --

Mr. Norton J. Come: The board's position would be different as indicated by the -- if the union security clause were enforced.

Unknown Speaker: By the employer you mean.

Mr. Norton J. Come: By the employer, in that situation the board would treat it like an ordinary collected bargaining agreement which carries with it a presumption that the union has majority status.

The board found and the Court of Appeals accepted that finding, that neither at the time the labor agreement was executed, nor thereafter the union claim to or in fact represent a majority of Higdon Constructions employees at the Glenmore project.

Meanwhile, Higdon Contracting was formed, to perform nonunion iron jobs and it did successfully on two jobs, Grace and Warmet(ph) and began work on them with nonunion labor.

When Higdon refused to apply the prior agreement to these jobs, the union picketed the jobs which signed stating that Higdon Construction was in the violation of the previous pre-hire agreement was entered into at the Glenmoore job.

Higdon Contracting filed an 8 (b)(7) charge and the board found that the violation of that provision.

It preliminarily found that the agreement between the union and Higdon, although it was a pre-hire agreement sanctioned by 8(f) did not privilege the picketing at the Grace job site as a means of enforcing that agreement because there was no showing that the union had ever acquired a majority under the agreement to form a full collective bargaining relationship.

The board in so holding relied on its earlier decision in R.J. Smith holding that a pre-hire agreement without proof that the union had acquired a majority support there under did not carry with it presumption that the union had become the Section 9 (a) or majority representative of the employees.

Court of Appeals which it set aside the board's decision in R.J. Smith, also set aside its decision here.

Now, it is a established principle under the National Labor Relations Act that employee shall be free to select their own bargaining representative, that an employer is obligated to bargain under Section 8(a)(5) of the Act only with the representative designated by a majority of the employees in a appropriate unit and that it is an unfair labor practice for both under part of the employer and the union to enter into a collective bargaining agreement when the union does not represent a majority of the employees.

Even though the parties may in good faith belief that they do and even though subsequently the union may in fact acquire a majority.

Now, Section 8(b)(7)(c) provides significant additional protection or the employees' rights of free choice by prohibiting a union which is not currently certified as a bargaining representative of the employees from picketing to force the employer, to recognize it as the employees representative for more than 30 days unless a representation petition is filed.

If a timely petition is filed, then a provision is made for an expedited election and the whole theory of 8 (b)(7)(c) is to channel disputes concerning the representation status of the union from the picket line into the board's representation procedures.

The union's picketing here came squarely within 8 (b)(7)(c).

It had never been certified by the board as the representative of Higdon's employees, nor had it otherwise been selected by a majority of those employees.

Nevertheless the union picketed here for more than 30 days during which time no representation petition was filed.

The evolved purpose of the picketing was to compel Higdon to adhere to the pre-hire agreement executed for the Glenmore job, the necessary effect of which would have been to recognize the union as the representative of the employees at the Grace job site even though they had never selected the union as their representative.

Now, the basic question that we come down to here is whether the 8 (f) agreement removes the picketing from the reach of 8 (b)(7)(c) on the theory that such agreement by operation of law has established the union as the Section 9 (a) or majority representative of Higdon's employees and thus the representation question is already been resolved.

In the board's view, and 8 (f) agreement does not without more establish that the union is the majority representative.

It is merely a preliminarily step that contemplates further action to establish a full bargaining relationship.

Hence, absent to showing that the union has required such majority support, neither the agreement is enforceable, neither through a bargaining order issued under Section 8 (a)(5) which obligates the imperative bargain with the majority representative, nor does it insulate the picketing from 8 (b)(7)(c) picketing.

Now, the board's position rests upon the following considerations.

In the first place, we start with the language of the statute which is set forth at page three of the board's brief.

It provides that it shall not be an unfair labor practice for employers or unions in the construction industry to make an agreement covering employees engaged or who upon their employment will be engaged in that industry because the majority status of such labor organization has not been established under the provisions of Section 9, prior to the making of such agreement.

Now, nothing in that language suggests that it was intended to confer upon a union that is a party to a pre-hire agreement.

The status of a Section 9 (a) or majority representative.

Congress did not in Section 8 (f) or elsewhere modify Sections 8 (a)(5) or 9 (a).

The former as I have indicated obligates the employer to bargain with the representative of his employees subject to the provisions of 9 (a) and 9 (a) defines the bargaining representative as the representative selected by the majority of the employees in an appropriate unit.

Moreover, while the board's well established contract bar rules would preclude the board from entertaining a representation petition during the life of a collective – an ordinary collective bargaining agreement.

The last proviso of the Section 8 (f) which is on page four of the brief provides that any agreement which would be invalid but for clause one which permits without the majority being established, shall not be a bar to a petition filed pursuant to Section 9 (c) which is a the provision that for determining a representation questions or 9 (e) which is a provision that permits employees to de-authorize a union security clause.

Now, the legislative history, we believe confirms that Congress in authorizing pre-hire agreements intended to do nothing more, because of the peculiar characteristics of the building and construction industry to relieve them from what would otherwise be a clear violation of the National Labor Relations Act.

I have mentioned earlier that --and this court so held in the Garment Workers case a number of years ago, that in the ordinary case, an employer and a union have to have a representative complement of employees on board and the union has to represent a majority of them before you can enter into a collective bargaining agreement.

This did not work for the building and construction industry because of the short term nature of most construction projects, and the fact that the employers ordinarily lacked a steady complement of employees, is necessary for employers to enter into labor agreements before the job is started or the workers are hired.

So, 8 (f) was enacted to relieve them of having to comply with what would otherwise be an impossible rule for the building and construction industry and it caused a lot of trouble under the Taft-Hartley Act in administering because it just did not fit.

But we submit that that is as far as Congress intended to go, it did not intend to relieve unions of the responsibility of acquiring a majority support under these contracts.

Congress thought that in the typical case that would happen because the employer would draw from a pool of skilled craftsmen in the area who are usually are often union members.

Secondly, it permitted the negotiation of union security provisions which gave employees seven days instead of the normal 30, to join the union.

Unknown Speaker: Mr. Come, could I interrupt you for just a minute?

If I understand you are saying that the 8 (f) removed the legal rule that would be an unfair labor practice for the union to enter into such an agreement, but it did not have the effect of making the union, the collective bargaining agent of the employees.

What is the net result of this, the creation of a valid enforceable contract or not?

I gather you are saying it was not.

If not, how would it under – let me get the whole thought out, how then would they determine whether the employees could insist on being paid the wage rates specified in the agreement, for example, or bonuses at the end of these – were these enforcement obligations or not?

Mr. Norton J. Come: Well, if the employer and the union abided by the agreement and if the union acquired the majority support under the agreement, there would be enforcement.

Unknown Speaker: No, my assumption would be that the union never gets the majority status, but toward the end of the contract terms, it is – when they finish the building, the company just decides well, we have decided not to pay you that amount, we think we agreed to pay more than we should have, it is not an enforceable contract, we will give you the reasonable value of your services and that is it.

Will they be free to do that?

Mr. Norton J. Come: Under the board's position, if the union had not acquired a majority support, if the employer failed to abide by the contract there would not be an enforceable obligation under Section 8 (a)(5) of the statute.

The board would not issue a bargaining order requiring the employer to abide by the agreement, whether there would be a suit under 301 or some other suit for the recovery of wages under that contract or the period under which it was observed is a question that the board has not passed on.

But in so far as the board is concerned --

Unknown Speaker: Would not the logical implication to your position be that no such suit could be obtained on the contract even though there might some kind of a quantum meruit claim or something like that.

Mr. Norton J. Come: I think that that would be the logical implication.

Unknown Speaker: Oh, that is much of a contract, in the normal sense of that word, even in the sense of collective bargaining contract, if it is not binding on anybody, that is not an agreement, it is not a contract.

Mr. Norton J. Come: I think Your Honor, that that is the point here that this in the board's view, this pre-hire agreement is not a full contract.

It gives the union, a right to enter into the agreement, but it takes subsequent action to mature that into a full collective bargaining arrangement.

Unknown Speaker: Really, all in your submission, all the 8(f) does is exempt the employer and the union from charges of an unfair labor practice to the extent of what it does.

Mr. Norton J. Come: That is correct, Your Honor.

Justice Thurgood Marshall: Well, if the contract is no good, why do you need 8 (f)?

Mr. Norton J. Come: Well, you need 8 (f) because the mere entry into the contract would have been illegal without 8 (f) and you --

Justice Thurgood Marshall: So, the contract as, can not be enforced by either side?

Mr. Norton J. Come: It can be if the union has acquired majority support onto the contract --

Unknown Speaker: That is always true.

Justice Thurgood Marshall: Why do you need 8 (f)?

Mr. Norton J. Come: Well, you needed 8 (f) --

Justice Thurgood Marshall: If it is just as I understand, it is just a piece of paper signed that has no bond and effect on anybody.

Mr. Norton J. Come: You need 8 (f) to give that --

Justice Thurgood Marshall: And that is an agreement?

Mr. Norton J. Come: That initial period to apply a majority, even under the Court of Appeal's position, the agreement does not have much more effect because the Court of Appeals agrees and I do not understand my brother to disagree that the entry into the agreement does not relieve the union of the necessity to acquire a majority support under it.

So that, if the employer were to file a petition or the employees or a union and a union that entered into that contract were found to have a minority status, that contract would be unenforceable and come to an end.

Unknown Speaker: Well, Mr. Come, on the hypothetical my brother Steven's posed to you and that is a breach is on the wage provision of a 8 (f) contract.

Does not Lion Dry Goods suggest that would be enforceable in the court under 301?

Mr. Norton J. Come: Lion Dry Goods Your Honor and we have addressed ourselves to that more fully in our reply brief, holds that the strike settlement agreement, there is jurisdiction under Section 301 to entertain a suit on a strike settlement agreement, not withstanding the fact that the union does not purport to represent a majority of the employees --

Unknown Speaker: What was in the holding, it is some while since I read, it was not the holding in Lion Dry Woods that the strike settlement agreement was enforceable in this 301 suit and at the holding?

Mr. Norton J. Come: The holding was -- as I read the holding, in parse Your Honor wrote it, so, he probably is more --

Unknown Speaker: I would suggest that, I have read it a while, but my recollection is that I do not know why would we have written a decision if we did not hold that the agreement --

Strike settlement agreement was enforceable.

Mr. Norton J. Come: Well, the precise holding was that there was jurisdiction, that it was not jurisdiction was not defeated merely because it was not a typical --

Unknown Speaker: Jurisdiction to do what.

To decide that --

To decide that it was not enforceable?

Mr. Norton J. Come: Jurisdiction to entertain the suit and I --

Unknown Speaker: Does not mean that the plaintiff would gave won --

Mr. Norton J. Come: It does not mean the plaintiff would have won, similarly even though the court in reaching that conclusion pointed to 8 (f) is another form of minority agreement.

Unknown Speaker: It is definitely, I am reading from your own brief, in looking as to Lion Dry Woods, the court indicated its view, that the strike settlement agreement in that case would be enforceable.

Do you cite through 369 US 27.

Mr. Norton J. Come: But I go on, we go on to point out that it does not indicate under what circumstances it would be and we submit that there are circumstances under which an 8 (f) agreement would be enforceable clearly at the union acquired a majority support on --

Unknown Speaker: That is not because of the initial 8 (f) agreement, that is because of subsequent development.

Mr. Norton J. Come: Yeah, without 8 (f) that agreement would have been illegal to begin with.

Unknown Speaker: That would be an unfair labor practice, yes you have told us that and that is correct obviously.

Mr. Norton J. Come: Similarly, there are circumstances under which even under the Court of Appeal's position the 8 (f) agreement would not be --

Unknown Speaker: Well, because that is explicitly covered by the second proviso.

Mr. Norton J. Come: Well, if that is an 8 (f) --.

Unknown Speaker: Well, I think that is of 8 (f), is not it?

Mr. Norton J. Come: That gets to the question as to whether that is the only way in which congress visualized.

Unknown Speaker: That is really the nub of the controversy between you and your brother, is not it.

As I understand your briefs.

Mr. Norton J. Come: Yes.

Justice Thurgood Marshall: Would an agreement which on its face says that it is unenforceable by each side be an unfair labor practice?

Mr. Norton J. Come: I really can imagine of – I can not image of what is --

Unknown Speaker: Well, I can imaging what you have got here now, that what you have got here now.

Mr. Norton J. Come: Well, we submit that without a --

Justice Thurgood Marshall: You do not really be there after --.

Mr. Norton J. Come: Well, you do, but, I would like to reserve the balance of my time.

Chief Justice Warren E. Burger: Mr. Berger.

Argument of Sydney L. Berger

Mr. Sydney L. Berger: Mr. Chief Justice, may it please the court.

First of all, I would respectfully call to your attention, there are important facts in the record omitted in the opening statement.

One, there is a history of an eight year collective bargaining relationship between this employer and our client local 103 of the iron workers.

Two, the record is undisputed that this employer formed a new company solely “to get around the contract”.

As a result of that the administrative law judge found, the analog B found that the employer was guilty of chicanery of Subterfuge, of the shame and the District Judge, United States District Judge in Owensboro, to whom the board went for an injunction were only had a proof was that the regional director had reasonable cause to believe, he committed a unfair ---

Justice Byron R. White: Yeah, but your position would be the same that had been in the chicanery or subterfuge?

Mr. Sydney L. Berger: Mr. Justice White, I would say yes and no.

I would say yes our position would be the same as far as statutory interpretation is concerned.

Justice Byron R. White: And far as you are right to picket to enforce this contract.

Mr. Sydney L. Berger: Yes.

Unknown Speaker: And what is involved here is statutory construction.

We can just assume that this is the same employer even though there was a change of corporate form but that is conceded now is it not?

We assume that this was the same employer on all three matters.

Mr. Sydney L. Berger: Yes Sir.

Unknown Speaker: Alright, and that is really all this about.

Mr. Sydney L. Berger: Well, may I respectfully suggest this to the court that this is not only accord of law but accord of justice and it says on the precending -- I came in the steps with law and came in to this chamber of equal justice under the law and I suggest that if the Board's position is upheld and if the Court finds that this employee who was guilty of chicanery and all of that subterfuge and shame was right and that our client was wrong and injustice has been done and I think that.

Justice Byron R. White: What if labor board which has first obligation in these matters, did not decide the case on that basis.

Is it in the case at all?

Mr. Sydney L. Berger: You are correct Mr. Justice White in this.

It is not in the decision of the Labor Board.

Justice Byron R. White: And we have many basis for deciding the case on another ground.

Have we?

Mr. Sydney L. Berger: Except that the record is undisputedly administered of law judge use that as a basis for his disagreement.

Justice Byron R. White: Yeah I know but the Board did not.

Mr. Sydney L. Berger: That is right Mr. Justice White.

Justice Potter Stewart: Okay all that language has to deal with as whether or not this was a different employer and you won on that, okay, this is the same employer, Your Honor won that point.

Mr. Sydney L. Berger: Okay thank you Mr. Justice Stewart I will now move from that premise.

Justice William H. Rehnquist: It is a useful footnote in your brief I guess.

Mr. Sydney L. Berger: Thank you sir Mr. Justice Rehnquist.

In any event the record also shows that the only purpose of the picketing was to require the employer to honor its contract with the local union and the record finally is undisputed that this contract covered all of the employers, employees and all of the job sites.

Now this is important.

Justice Byron R. White: Could I ask you if the picketing -- if the contract as you understand it call for the company do bargain with the union.

Was the picketing intended to put pressure on the employer to bargain of the union as the bargaining agent for the employees or just do enforce the wage provisions and other provisions?

Mr. Sydney L. Berger: Just to enforce the wage provisions and to honor the contract.

Justice Byron R. White: And he would not have needed to bargain with the union at all, is it that?

Mr. Sydney L. Berger: That is right.

It only had to do is live to up to his contract.

Justice Byron R. White: What about an arbitration provision, were agreements in arbitration provisions in this pre-hire agreement or not?

Mr. Sydney L. Berger: I do not recall that but it would not have mattered because the employer would not have honored any agreements.

Mr. Justice White, you just said I am not complying with the contract because there is other company that I formed with that.

Justice Byron R. White: Well I understand that.

I understand that but if there were agreements and arbitrations provisions in the contract I suppose the union then would have been in position of acting as the collective bargaining agent in administering the contract.

Mr. Sydney L. Berger: Correct sir.

Justice Byron R. White: But that was not involved here do you think?

Mr. Sydney L. Berger: I do not think so sir.

Now, the Board's interpretation of this agreement is in effect an attempt to rewrite the statute because what the board says Section 8 (f) means is that a contract is not a contract until the union establishes its majority at each job site.

Now if congress had wanted the union to do that.

If congress had intended that an 8 (f) contract is valid only when the union establishes its majority would have said so.

The Act is silent on that, further more, the Legislative History that they speak about was mentioned by the Court of Appeals four years ago on the local 150 case, when they said we confine no sanction in the language, history or policy.

History meaning Legislative History or section 8 (f) to permit an employer to abrogate unilaterally validly executed pre-hire agreement, or to permit an employer to commit one of these otherwise an unfair labor practice, even though at that time the union has not obtained majority status.

Now the question is suggested in the Board's briefs that what about the employees wishes in that.

Well that proviso takes care of that because the proviso says that unlike a normal contract where you can have an election because of the contract bar at any time, at any time after an 8 (f) contract is signed, the employees if they feel the union is not representing and they do not want the union, the employer, if he feels that this is not a union which represents a majority of these employees or any other union can come in and get an election.

Justice William H. Rehnquist: The practical consequences is that the decision one way or the other is just which side has to petition for an election.

Mr. Sydney L. Berger: But it is much more than that in simple case, Mr. Justice Rehnquist because our interpretation, the correct interpretation is the contract is valid until an election is held at which the union loses.

If the union loses and is no longer a majority representative, then the contract is then terminated and no longer effective.

But until then it is a valid contract.

The Board's construed sophistry and in trying to say is this a contract.

It is not a contract and the union has to go and petition for an election means, you do not have a contract.

Everybody signs a document in good faith.

The employer agrees to pay certain wages and working condition and then it can just say I do not have to because you have approved to the union that you have a contract.

Justice William H. Rehnquist: Of course, when you say everybody signs a contract in good faith.

Your typical construction industry contractor signs one of those agreements at the time he may have no employees at all.

Mr. Sydney L. Berger: That is right in the legislative, Mr. Justice Rehnquist.

The legislative history which is relied on since that is the purpose of it, in reading from the standard committee on Labor and Welfare Report which both sides concede is the authoritative document and it is set out at pages many places but in the Board's brief at pages 20 and 21 says that such labor agreements necessarily apply to jobs which have not been started and may not even be contemplated.

The practice of signing of such agreements for future employment is not entirely consistent with Wager Act's ruling and then they said that exclusive contracts can lawfully be concluded only if the lot of people have signed.

He said this is the reason why it has to be different in the construction industry. One is that the employer has to know his labor costs.

Two, he has to have available a supply of skilled craftsmen and, therefore the history shows that the purpose of an 8 (f) contract is to legitimatize the practice of a union and an employer signing a contract for three years as done in this case and is not throughout the contract two or three years or one year to assure a supply of skilled craftsmen to give stability in the industry.

Justice Byron R. White: I doubt if there is much argument about the purpose Mr. Berger.

Tell me it is a fact here the employer did not seek an election.

Is that not right.

Mr. Sydney L. Berger: That is right Mr. Justice White.

Justice Byron R. White: You know why.

You know why.

Mr. Sydney L. Berger: The record is silent on that.

I can theorize but if the record is silent, the employees also did not seek an election.

Justice Byron R. White: And of course, you know why they did not I suppose.

Mr. Sydney L. Berger: I do not know why.

I can guess but I am sure Your Honor is able to do that better than I, but the point is, it is undisputed they had the right to do that at any time.

Instead of tearing up the contract in effect they could have used the remedy which congress gave them to do so.

The Board points out that it is worried about tuck down organizing, yet the Board says that if in this contract there was a union security provision which would have required employees on the job to join the union after eight days which is permitted under the Act then the union would have a presumption of majority statute.

Justice Potter Stewart: That is if the employer enforced it.

The Board says that would be true if the employer enforced the union security provision.

Mr. Sydney L. Berger: Yes Sir.

But the point is Mr. Justice Stewart that I want to make to the court is that this would encourage unions to force employees to join rather than give them a chance to assert their wishes in an election which is freely held as provided in the proviso of the section 8 (f).

Now the Board's interpretation aside from its inconsistency and illogicality has several very bad effects.

They are shown by the fact that they cite in their reply brief, for example, this D.C. case which the Board just handed out.

Now in the D.C. Case you had a similar situation of an employer who had formed another corporation and disregarded union collective bargaining agreement who insisted that if you wanted to keep working for him, the employees would have to drop out of the union.

This was a blatant unfair labor practice and the Board so ruled but yet the Board said that despite that the agreement which the employer had signed which he violated was not binding on the union because the union did not prove it represented the majority of the employees at each particular site but the employer's unfair labor practice prevented the union from getting majority of employees and that is what the Court of Appeals correctly pointed out 1973 in the Local 150 operating engineers case.

Justice Byron R. White: I take it would not satisfy you if a court were to hold, or if this court were to hold that your pre-hire is enforceable on the courts but not by picketing.

Mr. Sydney L. Berger: Well, you say it is not for my satisfaction of the factor, Mr. Justice White but if you mean what I.

Justice Byron R. White: And that says legally.

Legally would you find that attainable at all?

Mr. Sydney L. Berger: Well if the court so rules it does not only attainable, it is the law but before the court has so ruled it is my position that the First Amendment is still a very viable thing, it is still very important in this country and picketing is still the exercise of the First Amendment Right.

Justice Byron R. White: So you think that this is not a statutory question.

Mr. Sydney L. Berger: It is, but I was trying to answer Mr. Justice White your question as to a possible ruling on the court.

I would prefer the court say that the contract is enforceable by picketing because First Amendment says, you have a right to picket and tell people about facts and the Taft-Hartley Acts itself says so.

Justice Byron R. White: Well, I will put it this way.

Would your aims be -- could you achieve your aims by through legal action rather than by picketing?

Mr. Sydney L. Berger: We could but the problem Your Honor is that this is a small union.

If they have to go to court and legally enforce every violation, you are going to overburden the courts which Mr. Chief Justice has already pointed out, greatly overburden their work, you are going to encourage delay in litigious processes and if it is legal to have such a contract and if an employer breaks such a contract and it is an enforceable contract, why can not the union just have a man and this only one man peacefully were to sign saying, the company violates the agreement.

Justice Byron R. White: Let me ask you once more.

Do you think that you would have been entitled to picket if you had asked the employer to recognize of the union as the collective bargaining agent and the employer has said no I will not, but of course I will pay the wages that the agreement calls for.

Mr. Sydney L. Berger: Absent, absent the contract in this case, of course not, that would be recognitional picketing and hand picketing.

Justice Byron R. White: But what I want to know is with the contract would you say he had to recognize you as the collective bargaining agent.

Mr. Sydney L. Berger: With all due respect Mr. Justice White.

I said he had already recognized it.

Justice Byron R. White: So your answer is yes.

Mr. Sydney L. Berger: Yes sir.

Chief Justice Warren E. Burger: Well the picketing would accomplish your result in about a week probably but the litigation might take a long time.

Mr. Sydney L. Berger: That is right Your Honor.

Chief Justice Warren E. Burger: Maybe not even a week of picketing would be able to with the employer withstand.

Mr. Sydney L. Berger: Well,you are taking an arbitrary time and certainly economic pressure and if I read your question Mr. Chief Justice Burger correctly about withstanding, a union is entitled to bring certain kind of economic pressure where picketing is legal.

Chief Justice Warren E. Burger: I was not questioning that, I was just trying to get out what your alternatives, which alternative you would prefer?

Mr. Sydney L. Berger: I prefer the picketing for the reasons Your Honor stated.

Justice John Paul Stevens: Mr. Berger let me follow up on Justice White's question.

I am not completely sure as I understand your answer.

He was asking by if I follow your dialog correctly, whether it was possible that the contract might be a valid enforceable contract but nevertheless you might have violated section 8 (b)(7) by picketing to enforce it because reading 8 (b)(7) in a very literal way.

How do you get around just the literal language of 8 (b)(7), why does not the language apply to your situation.

Mr. Sydney L. Berger: Because Your Honor the Board has consistently ruled in the Oilfield Research Cases and in other cases and the Court of Appeals ruled that where picketing has been conducted by a union who already signed a contract, it is not recognitional picketing because recognitional picketing only applies to the initial attempt for the union to gain that recognition.

We cite at page 11 of our brief the Dallas case and I quote from the Court of Appeals language there in 1968 that the Board itself there, the Board correctly points out that section 8 (b)(7)(A) is aimed only at a labor organizations picketing to gain recognition for the first time, not picketing designed to retain its representative status.

So under the Board's own prior decisions and we cite them in our brief the Bay Counties case, the Sullivan Electric Company Case.

The Board is previously and repeatedly ruled, Court of Appeals has ruled that picketing such as that in the case at even arguendo it was for collective bargaining purposes was not within the prohibition of 8 (b)(7)(A).

Justice John Paul Stevens: Then let me ask the opposite of the question.

If your argument is valid would it not equally be valid even if the contract is invalid.

If they are not quite seeking to get their first recognition they are seeking really to maintain a recognition they had even though the status before was not as a party to a valid contract, they still were doing something lawful.

Is the validity to contract and controlling importance is it what I am trying to figure out.

Mr. Sydney L. Berger: It is a very sharp question Mr. Justice Stevens and I not sure to answer that because it would appear to me in the first place that it could be argued that once the employer breaches the contract and it is no longer controlling there is a termination of the recognition of the union and of the union then pickets, if the contract is invalid the union is then picketing to get recognitional status for the first time.

If the contract is invalid, the union was recognize because the union could not be recognized by a contract unless it is a valid contract.

So therefore, I would say that the validity of the contract is controlling in that case.

But I have not thought that through, that is my initial reactions.

So therefore my point there is that the Board's interpretation encourages employers to discriminate against union members to make people drop union membership as a condition of employment in order to prevent the union from getting a majority status and thereby saying we can avoid binding effect of a contract.

Justice Potter Stewart: 8 (b)(7) and 8 (f) were enacted as part of the same bill in 1959, was is not?

Mr. Sydney L. Berger: I believe so Mr. Justice Stewart but I am not positive.

Justice Potter Stewart: Because they certainly look in quite different directions, do they not?

Mr. Sydney L. Berger: Right sir but the --.

Justice Potter Stewart: were enacted by the same Congress at the same time.

Mr. Sydney L. Berger: Right Sir and the only consistent explanation of that we submit to the court is the explanation that we in our brief that 8 (f) carves out an exception to the usual rules, the 9 (a) rule, the 8 (b)(7) rule.

Justice Potter Stewart: Well it so.

It clearly carves out an exception and the question I suppose in this case is how big is the exception and what is the scope of the exception?

Mr. Sydney L. Berger: Right sir.

Justice Potter Stewart: It clearly carves out an exception.

Mr. Sydney L. Berger: Yes sir, is opposition and as the Court of Appeals said in the two Court of Appeals, Third Circuit in District of Columbia that it would be an exercise on futility and it is can concede that congress would go to say that a 8 (f) contract with the minority so to speak union before the union has achieved its majority.

It is legal and yet it can not be enforced.

Justice Potter Stewart: Could I ask you, does the record show what conduct does the employer, the union claimed was in breach of the contract and which provoked the picketing.

Mr. Sydney L. Berger: Yes sir, the employer refused to play the wages and wage scale and the contributions to the welfare and pension funds that the employer had agreed to pay in its contract.

Justice Byron R. White: So it was not the refusal to bargain?

Mr. Sydney L. Berger: No there was nothing to bargain Mr. Justice White.

The bargaining was accomplished when the contract is signed.

Justice Byron R. White: And just as a --.

Mr. Sydney L. Berger: But on the other hand, excuse me, I suppose it can be argued that when an employer breaches a contract it is refusing to bargain.

I have no strong opinion.

Justice Byron R. White: Who were the beneficiaries of the pension plan?

Mr. Sydney L. Berger: All of the employees including the nonunion employees.

Justice John Paul Stevens: Mr. Berger would you come in on one of the practical aspect that I want to really understand here.

It occurs to me that these contracts have short duration in time because the jobs are completed relatively quickly.

Is it a practical solution for any of the interested parties to go for an election because election takes even just a couple of weeks.

Maybe the job will be completed is, is this why nobody ever seeks the election if the contracts do not take long enough to perform and is not perhaps then the real question is who may you hire when you start the job rather than what remedy maybe available after a couple of weeks are gone by.

Mr. Sydney L. Berger: There were several questions there and I may answer them some of these jobs are of short duration but if the question is who may you hire when you start.

If an employer does not want to hire union members or does it want to pay the wages in hour and working conditions that have been developed to protect the employees over the years, it does not have to sign a collective bargaining agreement or even if you have an employer then some of the jobs last for a long time.

There is several going on already, and now with the constructing power houses and that which last for two and three years.

The reason nobody files an election is the union represents a majority of employees.

The employer and the union agreed on these wages hours and working conditions and everybody is happy about it.

It is arm's length bargaining and the senate report, the committee report again points out that these contracts themselves are for a long period because that gives stability in the construction industry.

If a new contract had to be signed for every particular job it would lead to endless negotiations and so forth.

So I do not know if that answers your question.

Justice John Paul Stevens: One other thing that occurs to me, it helps me.

I am just -- I find this very puzzling case.

One other problems, I suppose is that in order to get the first job signed up, he is got to sign an areawide agreement and then the problem arises in the subsequent jobs when he -- but he can not do it on a simply a job-by-job basis when the union represents whole territory like this.

Mr. Sydney L. Berger: Mr. Justice Stevens, the employer does not have to sign an areawide agreement.

There are many project agreements that are signed and in some of the cases which are cited in the briefs there were project agreement signed rather than areawide agreements.

So whether the employer signs an areawide agreements, depend on whether he is going to be in the business in that area over a long period of time.

It depends on the facts.

Justice John Paul Stevens: Thank you.

Mr. Sydney L. Berger: The problem with the -- another problem with the Board's position as I say is not only that it would and does encourage unfair labor practices as shown by this case, by the Local 150 case and by the D.C. that's Dee Cee case cited by the board is the fact to that it would create a lot -- it would open a Pandora's box as far as administration under the Act and it would require and employer who signs an agreement with employee.

The employer says you do not have a majority.

The union says we do have a majority.

If the union files does it have to file an unfair labor practice.

Does it have to file for an election.

The Act is silent on all that whereas the Act gives the explicit remedy that anytime the employer or an employee feels that the union is not representing majority of the employees they can petition for the election.

Justice Byron R. White: Well this is not something new on the part of Board, is it.

Mr. Sydney L. Berger: Mr. Justice White, what do you mean by this is not something new?

Justice Byron R. White: Well, I mean this is some new and novel interpretation of the Act for the Board.

Mr. Sydney L. Berger: As far as section 8 (f) is concerned it is.

Justice Byron R. White: Have you ever held this before?

Mr. Sydney L. Berger: Yes in R. J. Smith.

Justice Byron R. White: Yes, well I mean it has it ever held it a contrary.

I mean has this been the Board's consistent position as far as you can tell.

Mr. Sydney L. Berger: Well it had not been the Board's consistent positions we point out in our brief, as the amicus brief points out in Oilfield Research and in other cases, the Board has held that an 8 (f) contract is a valid contract even though the union did not establish its majority position.

There was no --.

Justice Byron R. White: No, apparently the Board's feels that either construction is consistent with the Act.

Mr. Sydney L. Berger: And I submit Mr. Justice White, the Board was previously wrong on that.

Justice William H. Rehnquist: Well, did not the Board distinguish the peculiar circumstances in Oilfield Research from the ordinary construction.

Mr. Sydney L. Berger: They do but I don't think their distinction is valid Mr. Justice Rehnquist.

Their distinction of Oilfield Maintenance, they say in their reply brief that case has been expressly limited by the Board to its particular circumstances.

There is no Board case that has that language.

They said there that the Board has declined to extend that decision to the kind of 8 (f) agreements involved in this case.

That is misleading.

The 8 (f) agreement in this case is the same as the 8 (f) agreement in the Oilfield Maintenance.

Justice William H. Rehnquist: Well I suppose this case is a prime example of the Board's refusal to extend Oilfields. Since the Board did not came out the way it did.

Mr. Sydney L. Berger: Well, Mr. Justice Rehnquist the argument would then be over extend.

I would say it is a an instance of the Board refusing to follow Oilfield, not extended because it is directly contradictory.

So I do not regard that as extension but aside from that it is just court's function.

We respectfully submit to construe of the Act and the Board has has been wrong five times.

It was wrong in R. J. Smith.

It was wrong in Local 150, the Operating Engineers it was wrong and this Dee Cee case in construing 8 (f) of the Act to make it a nullity.

What good is the contract if it is not enforceable.

I mean you are dealing with people.

People who work for living in that and I would hate to go out and talk to my clients.

Guys, where iron work is to put up buildings, they work with their hands for living and say, look your business agent signed the contract with this employer but the contract is worth the paper it is printed on, if the employer does not want to enforce it.

Justice William H. Rehnquist: All 8(f) says is that it shall not be an unfair labor practice for an employer to do this.

Mr. Sydney L. Berger: That is correct.

Justice William H. Rehnquist: It is the government's submission , that is its purpose just to exempt the employer from a charge of engaging an unfair labor practice.

Mr. Sydney L. Berger: But Mr. Justice Stewart, the language in the Committee Report indicates that the purpose of that is to legitimatize and sanction and encourage, encourage the reaching of collective bargaining agreements in the construction industry which is sue generis.

Justice Potter Stewart: There is no argument I think about what the legislative history says or what the purpose of this is.

Mr. Sydney L. Berger: But as I submit that is all the Act had to say was what it says.

I mean if you have a contract or you do not a contract and I submit that.

Justice Potter Stewart: Well, do you have an unfair labor practice or do you not have an unfair labor practice.

That is what 8 (f) is directed to, by its terms.

Mr. Sydney L. Berger: But we submit that that question depends on whether you have a valid contract or not, therefore we submit that in this particular case, the only reasonable interpretation of section 8 (f) is to provide that when the Congress --.

Chief Justice Warren E. Burger: Very well.

Mr. Come do you have anything further.

Rebuttal of Norton J. Come

Mr. Norton J. Come: Just a small point Your Honor.

I would like to close by calling the court's attention again to the Garment Workers Case.

One, that was the case that held that there was an unfair labor practice for employer and union entered into a contract where the union did not have a majority, even though the parties in good faith believed that they did and that shortly thereafter the union did acquire a majority and the court not only so held but it went on to find that since that contract was an unfair labor practice to enter into it, it was not even enforcible with respect to the members of the union only.

And we submit that you have to look at what Congress did against the backdrop of the Garment Workers Case.

Justice Potter Stewart: Well, Mr. Come how would it derogate the interest that you think support your side of the case to hold the substantive provisions of the contract rather than the recognition provisions or the bargaining provisions to be enforceable in a 301 suit.

As long as the union did not purport to be representing all the employees or demand that it would be recognized as such, why not permit the wage provisions for example, to the enforcement on 301 suit?

Mr. Norton J. Come: Off hand, I do not see too much of a problem with that but you do get to the point where how much of the contract is being enforced and if you get to enforcing beyond that then you get the union equivalent of recognition.

Justice Potter Stewart: Well, the union apparently was complaining here about his failure to live up to the wage and the welfare and pension agreement.

Mr. Norton J. Come: Your Honor, as we read the record the union was complaining about a lot more than that.

They wanted the whole contract applied and as a matter of fact filed a refusal of bargaining charge with the Board when the employer took the position that this project was a different project and had no obligation to recognize the union on their project.

So this is a recognition dispute, whatever maybe the answer in one where recognition is not so.

The other point that I wish to make is that the second proviso to 9 (f) provides a means by which the contract can be brought to an end.

Namely petitioning for an election and the question is whether that is the only means.

There again we submit, that the answer is afforded by looking at the scheme of the Act and the scheme of the Act is that traditionally there have been two ways by which an employer can withdraw recognition from a union.

He can either do that by filing a petition under Section 9 of the Act which is explicit or he take his chances in an unfair labor practice proceeding.

That is not specifically set forth in the Act.

We submit that Congress did not intend to take away that avenue from the employer which is what happened in this case.

Justice Potter Stewart: Mr. Come, how often would that situation like we have in this case arise as a matter of the fact.

That very rarely, would not normally an 8 (f) be complied with by both sides and would it not normally be assumed that the employees represented were a majority of the union that it made an 8 (f) bargaining in advance.

Mr. Norton J. Come: I think that is the normal situation.

That is what Congress contemplated what happened and the question is how do you take care of --

Justice Potter Stewart: Of this Board case.

Mr. Norton J. Come: Of this Board case and there you have to balance 8 (f) against 8 (b)(7)(C).

As Your Honor pointed out the same Congress enacted it.

They look in different directions.

We submit that the Board made a reasonable accommodation here in the balance that it struck for the support or a typical case.

Justice Thurgood Marshall: Do you mean that in the Building Industry it is normal for building contractors to prefer not deal nonunion labor.

Mr. Norton J. Come: Your Honor, I think that what has happened is that there are several different parts of the Building and Construction Industry.

There is residential construction where as I understand it, it is not uncommon to use nonunion labor because they can not complete by using union labor.

In big construction, commercial construction that is more unionized.

As a result of that you have had the practice of these double-breasted corporations being set up in the Building and Construction Industry where they operate union on the big jobs and nonunion on the small jobs and this is really the problem in this case and there is nothing unlawful under the Act in setting up these different methods.

Justice Thurgood Marshall: So if we rule with you on this then we will see more of that.

Mr. Norton J. Come: Well, whether you will or not.

I do not know the answer to that Your Honor because as I pointed out Mr. Justice Stewart, the typical case is not this one.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.