Cases by Issue - Jurisdictional Dispute

Itt v. Electrical Workers - Oral Argument

Fri, 17 Sep 2010 15:18:24 +0000

Case:

Itt v. Electrical Workers

Media File:

73-1313_19741119-argument.mp3

Related Transcript:

73-1313_19741119-argument.xml

Transcript:

Argument of Matthew E. Murray

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1313, International Telephone Telegraph Corporation against International Brotherhood of Electrical Workers Union.

Mr. Murray, you may proceed whenever you're ready.

Mr. Matthew E. Murray: Honorable Chief Justice and may it please this honorable Court.

I have agreed to divide my time with Mr. Come of the National Labor Relations Board because I felt that the court would like to hear from the agency itself as to how the -- it has been interpreting the question which is before us today and that is the applicability of Sections 554 and the following sections to the 10 (k) hearing process in the Labor Management Relations Act.

The facts to this case commenced in Elk Grove Village, a little town at the edge of Cook County which includes the Greater Chicago area and the municipality at -- in Elk Grove had given ITT a contract to install all its communication equipment in the new municipal building.

The Local 134 of the IBEW had been doing practically all installation of telephone equipment in Cook County for many years and considered this particular area their private reserve.

So a strike took place.

IBEW was out there pulling cable and they found out that the ITT employees who were represented by nationwide agreement by the communication workers of America were going to do the installation and they struck the job.

We filed an 8 (b) (4) (D) charge and after the use of a ten-day period in which the board tries to get the parties to settle a dispute, the matter, the complaint issued and the hearing officer was appointed, the facts were gathered.

Everyone introduced their evidence including the employers and the unions and the 10 (k) was adjudged by the Court to -- was adjudged proper that the communication workers employed by ITT be given this work.

The other party at that point has ten minutes or ten days rather to tell the Regional Director if they're going to abide by this decision.

Ten-day period elapsed and they informed the Regional Director that they did not intend to abide by the ruling of the board in the 10 (k) proceeding which of course gave rise to the immediate filing of an 8 (b) (4) (D) charge under Section 10 (b) and (c) of the Act.

The 10 (b) charge of course is a prosecutorial proceeding by the Board as opposed to a purely investigative proceeding under 10 (k) and therefore, the Board needs the General Counsel must have a prosecutor.

And the hearing officer in the 10 (k) proceeding whose duty -- it was merely to gather evidence and submit the record to the Board without recommendation, was appointed as prosecutor in the 10 (b) and (c) unfair labor practice case.

Now the Seventh Circuit, there was no objection made to this until the proceedings were concluded and at that point, IBEW in its brief complained that the same man who had sat in the 10 (k) proceeding and heard the evidence was commingling prosecutorial with judicial functions in violation of the Administrative Procedure Act.

Now, the court both in -- the Board of course overruled this contention, went up to the Seventh Circuit, they found that indeed, IBEW was guilty of 8 (b) (4) (D) without question that this is precisely what the Section had been enacted to prevent but they finally said that they would not enforce the order because they felt that 15 or 10 (k) was subject to 554 etcetera of the Administrative Procedure Act and there was an illegal commingling of judicial and investigative functions, I mean, prosecutorial investigative functions which that Act forbids.

Now of course, Mr. Come I think will concentrate generally on how the Board has treated 10 (k) with reference to the Administrative Procedure Act over a long period of time.

We're all familiar with the fact that the Board has always treated 10 (k) as not subject to the Administrative Procedure Act and in a series of cases, it's so held that these -- this was never challenged by Congress or the courts for a period of 25 years.

We know also that the board has --

Justice Lewis F. Powell: Mr. Murray, then you don't agree with Judge Morrow's observation in his opinion and I quote, “It is apparently admitted that Section 554 applies to 10 (k) hearings.”

Mr. Matthew E. Murray: There is absolutely no basis in the record for that statement of Judge Morrow's.

It's a completely false assumption.

It was contented by the attorneys for Local 134 but there was never any admission of any kind.

So, this is the key to this case.

Judge Morrow did not cite any authority or any -- make any reference to the record in support of this observation simply because it was not fair.

Now, in making this unwarranted observation and assumption, in addition to ignoring everything that the National Labor Relations Board has done on this -- in this matter, the U.S. Courts of Appeal have had a case when they examined this.

The most recent decision, well, the second most recent decision was the D.C. Circuit in Bricklayers and in that case, Judge Feess flatly holds that 10 (k) proceedings are not applicable to the administrative procedure.

And in that case, the issue was whether trial examiners should be used instead of hearing officers and there's quite a distinction between a hearing officer and a trial examiner.

Judge Morrow sees to -- sees fit to use the word interchangeably but they are quite different -- sorts of animals.

A hearing officer is forbidden by board regulation for making any recommendation.

Its sole function is investigatory.

Whereas it is incumbent and is required by a hearing -- an administrative law judge or a trial examiner that he make a recommended decision.

Unknown Speaker: I gather that the hearing officer is not in this new category of administrative or judge?

Mr. Matthew E. Murray: No he is not.

He was simply an employee of the thirteenth region and he sat and heard the case, sent the record to the Board.

That was his sole function.

He did make evidentiary rulings but there is nothing in the record to indicate that there were any improper evidentiary rulings either in the Board decisions or the Seventh Circuit decision.

So, that particular thing, the prejudice is not apparent.

If there was any, it's certainly is not apparent from the record in any way, shape or form.

Now, there was also a very recent case down the Fifth Circuit, Shell Chemical which is cited in the Board's brief which was actually decided after our brief was filed which support Bricklayers in every respect in this particular question.

And of course this Court has had an opportunity to examine and to discuss this problem.

But Mr. Justice White in the Plasterer's case discussed the nature of 10 (k) and he emphasized the fact that no one is bound by a 10 (k) decision, not either of the unions nor the employers.

Of course, the judge did say further that the 10 (k) determination of the Board which requires incidentally a different modicum of proof than the regular unfair labor practice case that it nevertheless had a very strong effect on the 10 (b) and (c) case which followed on the 8 (b) (4).

Unknown Speaker: Does it ever happen that a 10 (k) winner loses in the unfair labor practice?

Mr. Matthew E. Murray: Not to my knowledge Your Honor but I think perhaps Mr. Come would have more information on that subject than do I.

What the -- the most important area here is the practical results that would ensue if the 10 (k) determination were to be held to be in adjudication under Section 554.

This would require indeed that you have administrative law judges rather than hearing officers.

We would have to await the appointment of an administrative law judge.

Now, we must not forget that the passage of 10 (k) by Congress was to expedite the settling of jurisdictional disputes.

Chief Justice Warren E. Burger: We'll resume there at 1 o'clock.

Mr. Murray, you may continue.

Mr. Matthew E. Murray: As was saying at the recess, the -- there was unanimous opinion practically in this contrary, for the need for the legislation to quickly settle jurisdictional strikes.

Congress was very much in the mood and it's certainly was their intent, the unions wanted it, the employers wanted it and even President Truman sent a special message regarding this legislation.

But unfortunately, it hasn't worked out as well as it was hoped.

However, if this decision is allowed to stand, we might suggest that it's been in litigation for four years at this point and the jurisdictional dispute is still not settled.

The board has furnished us with statistics showing that even to -- if you had an 8 (b) (2) or (3) -- (2) and (3) case with a trial examiner which would be required under the Administrative Procedure Act that the average time elapsed before the final Board order is 374 days.

So, obviously, this is going to completely for a congressional intent if this decision is allowed to stand.

The statute will have to be amended, something will have to be done.

But the fact is, as many of this 8 (b) (2)'s and 8 (b) (3)'s as I've participated in, I have never seen one that ended inside a two years including the appeal to the circuit court.

You have submitted findings of fact, inclusions of law, briefs, exceptions, briefs, motion for reconsideration, more briefs, lots of time to appeal to the appellate court and more briefs and oral arguments and motions for rehearing with more briefs and it is simply not -- it cannot be an expeditious way of settling this very real problem which causes so much havoc in the industry.

And the wording of the statute does not justify it.

The -- we're warned in the early stages of the act that the definitions are not to be taken too seriously as defining the scope of the act that there maybe a number of exceptions.

Also, in 554 proper, we have the exception that it does not apply to a certification of work or representatives which really in the last analysis is what 10 (k) amounts to.

It -- in the case of 9 (c) proceeding, they are certifying workers for a particular plan or particular unit.

In a 10 (k) proceeding, they are certifying workers for a particular type of work and it's by enlarged, it's the same, same thing, both proceedings conducted by hearing officers without recommendation to the Board merely vehicles to elicit evidence and transport the record to the Board.

We therefore submit that this unwarranted assumption, completely unwarranted assumption of Judge Morrow that the act is applicable should be disregarded because there's nothing in the Act, there's nothing in the record to justify it.

Now, furthermore and lastly, no prejudice could have resulted it here as for instance in the case of Young Wong Sung or I don't recall the exact wording of that case where you have a prosecutor building a case and then sitting in judgment on it.

Here, this hearing officer could not possibly know.

Again, contrary to one of Judge Morrow's assumptions, he could not know to whom the work would be awarded by the Board or whether they're in fact would be a 10 (b) (4) or a 10 (4) -- 10 (b) (4) (D) file.

He couldn't know that, he had no way of knowing that he would be the prosecutor and there's just nothing to justify any exception to the procedures that were taken in this particular case.

Thank you very much for your patience Your Honors.

Chief Justice Warren E. Burger: Thank you Mr. Murray.

Mr. Come.

Argument of Norton J. Come

Mr. Norton J. Come: Mr. Chief Justice, may it please the Court.

As Mr. Murray has indicated, a 10 (k) hearing which this Court had occasioned to become familiar with in the Plasterer's case three years ago is not an adversary or accusatory proceeding like an unfair labor practice proceeding.

Its purpose is not to determine whether an unfair labor practice has been committed but rather to obviate the need for such a determination by resolving the underlying jurisdictional dispute.

It is held like a representation case hearing not before an administrative law judge but a hearing officer who is an employee of the regional office.

And the hearing officer's function is solely to develop a full record so that the Board may determine which of two competing groups is entitled to claim the work in dispute.

The evidentiary material relates primarily to such matters as the employee's skills, area employer and industry practice, collective bargaining agreements.

In short, the type of economic material or administrative material which rarely presents credibility issues and as for that reason, that the hearing officer doesn't make any credibility determinations.

The close of the hearing, the case is transmitted to the Board for a decision.

The hearing officer prepares an analysis of the issues but does not as I say, make any credibility determinations.

He makes no recommendations, just as in the -- as in the representation proceeding, procedure.

The board makes its determination on the basis of the record developed by the hearing officer, his analysis of the record which contains no recommendations.

Unknown Speaker: Is there an oral argument on that Mr. Come.

Is there an oral argument?

Mr. Norton J. Come: There can be oral argument before the Board if the Board chooses to grant it.

Now, if the parties comply with the Board's 10 (k) determination, the 8 (b) (4) (D) charge is dismissed.

You never get an unfair labor practice proceeding.

It's on --

Justice Byron R. White: Is that -- does that occur in most of the cases?

Mr. Norton J. Come: Compliance?

Compliance happens in a fair percentage of the cases.

I wouldn't say that its most but it's not insignificant.

Unknown Speaker: Is there ever any average time between the hearing and the completion of the board proceedings?

Mr. Norton J. Come: Well, I think that the statistics that we have given and they indicate that the time between notice of hearing and board determination in a 10 (k) proceeding is about 175 days.

Justice Byron R. White: Let's assume that there was no compliance -- there was a compliance with only -- in only one out the 100,000 cases or a thousand.

Let's assume that hardly ever they complied.

Mr. Norton J. Come: None.

Justice Byron R. White: So, you always had to go through the unfair labor practice proceeding anyway.

Mr. Norton J. Come: Yes, Your Honor.

Justice Byron R. White: Wouldn't that make some difference to you as to what should happen in this case?

Mr. Norton J. Come: No, it would not make any difference because --

Justice Byron R. White: Oh!

Because of -- certainly you must have -- you must -- no one hardly ever upsets the 10 (k) proceeding is successful in upsetting one, does he?

Mr. Norton J. Come: Well, this goes to the question that Justice Blackmun asked earlier.

When the 8 (b) (4) (D) proceeding eventuates if one does eventuate, the issues that are open just as in the -- our case, the 10 (k) determination is not subject to relitigation absent newly discovered evidence.

So that the -- as a practical matter, the only issue that is open is the -- whether or not the union that is bringing strike pressure and loss in the 10 (k) is picketing for the object that 8 (b) (4) (D) proscribes.

Only a probable cause determination is made at the 10 (k) stage, you have the typical unfair labor practice standard of a preponderance of the evidence.

It has to be sustained in the 8 (b) (4) (D).

If the union is able to show that in fact it does not have the 8 (b) (4) (D) object --

Justice Byron R. White: Wait a minute.

Mr. Norton J. Come: Yes Your Honor.

Justice Byron R. White: Do you say that probable cause standard it to the 10 (k) proceeding.

That the conclusion of the 10 (k) proceeding, there is a decision?

Mr. Norton J. Come: There is a decision.

Justice Byron R. White: And it doesn't say there's probable cause to believe that this union or that union gets the work?

Mr. Norton J. Come: There's a probable cause standard only on whether or not the union engaged in the kind of a strike pressure for the object which you need to trigger the 10 (k) determination.

Justice Byron R. White: I agree with you.

You need a probable cause, the standard as to whether to start a 10 (k) proceeding.

Mr. Norton J. Come: But you're quite right that in terms of the determination of who is entitled to the work that is not put in probable cause.

Justice Byron R. White: Well, it isn't, expand its preponderance, isn't it?

Mr. Norton J. Come: It is --

Justice Byron R. White: When the Board sits down to decide which one is entitled in the 10 (k) proceeding, its preponderance.

Mr. Norton J. Come: That is correct.

But the Board does that on the basis of its own analysis of the record and not on the basis of any recommendations by the hearing officer but it's exactly the same as it is with the representation case.

Now, when the -- if the Board should issue an 8 (b) (4) (D) order, the losing union can take that to the Court of Appeals and get review of the -- not only 8 (b) (4) (D) order but also of the 10 (k) determination and he may be able to get the 10 (k) determination set aside by the Court of Appeals that just happened in the Ninth Circuit.

Justice Byron R. White: Could be the same reviewing standards, is there substantial evidence that the court concludes?

Mr. Norton J. Come: I believe that that is so.

But the problem is whether or not we have an adjudication within the meaning of the APA and the problem that arises is that -- I'm referring the Court to Section 554 of the -- of the Administrative Procedure Act which is in page 41 of the Board's brief, the gray one here.

It says, this Section applies according to the provisions thereof in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing and then you have a list of six exceptions, the sixth being the certification of worker representatives.

Now, we submit that a 10 (k) determination is not an adjudication within the meaning of 554 and if it isn't within 554 then the -- everything else follows.

The remaining provisions of the APA are not applicable.

We submit that it's not within 554 for at least -- for three reasons.

In the first place, it is not an adjudication because an adjudication is defined as “agency process for the formulation of an order” and order means the whole or part of a final disposition of an agency in a matter other than rule making.

And we submit that a 10 (k) determination is not a final disposition of the matter which invoked the Board's processes.

The matter that invoked the Board's processes was the 8 (b) (4) (D) charge that is not resolved by the 10 (k) proceeding.

You may never get an 8 (b) (4) (D) proceeding at the -- at least you don't know that at the time that the 10 (k) determination is made.

Secondly, we submit that even if it were an adjudication within the meaning of the APA, it is not an adjudication required by statute to be determined on the record after opportunity for an agency hearing.

Although the statute does require if the Board is to make the determination that it shall have a hearing.

It does not go on and specify the nature of that hearing and under this Court's decision in the Florida Railway case and Allegheny-Ludlum which was cited in our brief, the court has made plain that Congress was using the term to determine on the record after opportunity for a hearing specifically for the purpose of screening out of those situations where there was a hearing requirement but not a formal hearing requirement and I might say that a Board hearing is only an alternative if the parties are unable by some private means of adjustment to work out the jurisdictional dispute and certainly that doesn't have to be a record type hearing.

And thirdly, we say that if we fail on those two counts, we believe that we -- it is possible to read the 10 (k) proceeding as falling within the -- our case exception six certification of worker representatives.

Now, I --

Unknown Speaker: That's the term of art that was --

Mr. Norton J. Come: That is a term of art however, it occurred to me on looking over the statute the other evening and I know that arguments thought of on the eve on an argument, I suspect, an 8 (b) (4) (D) on page 31 of our brief, there is an unless clause in there that proscribes forcing or requiring an assignment of work and so on unless such employer is failing to conform to an order or a certification of the Board determining the bargaining representative for employees performing such work and the Board has interpreted that and this Court notes that in a footnote in Plasterer's as permitting it to dismiss the 8 (b) (4) (D) charge where it runs in favor of the striking union and the employer has not complied with it, so I think that this unless clause gives some support to what I would concede, what otherwise be a strange reading.

Unknown Speaker: You wouldn't rely only on that, would you?

Mr. Norton J. Come: No I would not, Your Honor.

I think that our best argument is the prior to that I've made and I might just say before I sit down that this has been a contemporaneous interpretation of the Board that there was enunciated shortly after 10 (k) was added to the Act in 1949 and it was consistently been repeated by the Board.

So we do not have a case here with the Board changing its position.

Thank you, Your Honor.

Unknown Speaker: First time in a long while, isn't that right?

Mr. Norton J. Come: Right, right.

Chief Justice Warren E. Burger: Mr. Fitzgerald.

Argument of Robert E. Fitzgerald

Mr. Robert E. Fitzgerald: Mr. Chief Justice and may it please the Court.

Before I begin the prepared part of my argument, I must point out that we do disagree with Mr. Come that the 10 (k) hearing is the same as the representation case hearing and I should initially note that these two types of hearings are differentiated by the fact that one is provided for in Section 9 of the Labor Management Relations Act handling representation matters and the 10 (k) proceeding is provided for in Section 10 of the statute having to do with unfair labor practice matters primarily.

I think Mr. Come has -- excuse me, correctly noted that the primary issue before the court based upon the Seventh Circuit Court of Appeals decision which states very clearly that the Administrative Procedure Act particularly Section 554 does apply to the Labor Board's 10 (k) hearings.

He has noted correctly that the basic question is whether the Board's 10 (k) hearing is an adjudication within the meaning of the Administrative Procedure Act.

I think necessarily, we must then look at and analyze the two statutes themselves as well as the related sections of both of those statutes.

Unknown Speaker: I gather you don't support the Court of Appeals' statement that it is apparently admitted that 554 applies to 10 (k) hearings?

Mr. Robert E. Fitzgerald: I'm sorry, did I -- your quote was --

Unknown Speaker: The Court of Appeals stated as Justice Blackmun pointed out earlier, it is apparently admitted that the 554 applies to 10 (k) hearing, it is not admitted to take --

Mr. Robert E. Fitzgerald: I don't believe the Labor Board admits that --

Unknown Speaker: But who ever did in this case?

Mr. Robert E. Fitzgerald: Well, that was our basic contention and --

Unknown Speaker: No, that's your contention.

This says it's admitted.

Mr. Robert E. Fitzgerald: I think that the Court, as I read its decisions said that it assumed that the Board would follow the provisions of the Administrative Procedure Act based primarily upon the rationale of the one --

Unknown Speaker: It's not my question.

Who admitted it?

The word is, it was admitted.

Mr. Robert E. Fitzgerald: I don't believe -- I don't believe it was ever admitted on the record, Your Honor.

You are correct in that.

But I think that the basic question or 554 does in reality apply to the 10 (k) hearings particularly in light of this Court's decision in the Plasterer's case must be viewed in light of what the purpose of the Administrative Procedure Act was designed to do.

And as the Court of Appeals noted and was explained very fully in the Wong case, the whole purpose of the Administrative Procedure Act was to set down the outer limits within which the administrative agencies could operate and particularly to prevent the commingling of functions particularly the prosecutorial function with the adjudicative function.

And in so, setting out in the Administrative Procedure Act, Section 554 was specifically designed and in its Subsection D in the second paragraph specifically prevented commingling of these functions.

Now, the Seventh Circuit Court of Appeals found that there was no exception to be granted to the Labor Board in its 10 (k) hearings from the application of Section 554 of the Administrative Procedure Act.

Indeed I might note that in the Labor Management Relations Act, Congress has stated that the Labor Board in the performance of its functions under the Labor Management Relations Act must provide and follow rules in conformity with the Administrative Procedure Act and that may be the source of the Seventh Circuit in Judge Morrow's comment about, it is conceded that 554 applies.

But in any event, I think if we look at Section 551, as well as, Section 554, the Court of Appeals' decision that the 10 (k) hearing is an adjudication within the meaning of Section 554 is a valid conclusion and further that no exception lies particularly because the 10 (k) hearing is not the same as a representation case.

I think that the language of 551 of the Administrative Procedure Act has been passed upon numerous times by this Court.

We cited the Wyman-Gordon case in which this Court said through Mr. Justice Black that a representation case meets the criteria of Section 551 of the Administrative Procedure Act.

This rationale has been affirmed by this Court as late as Mr. Justice Powell's decision in the Bell Aerospace case and as I believed referred to also in other decisions including Florida East Coast.

So that it's clear that the Labor Board proceedings are within the ambit of the Administrative Procedure Act as adjudications particularly under Section 551.

Then the critical question becomes, is there anything in Section 554 that would take the Labor Board proceedings, particularly the 10 (k) proceedings out from under the application of Section 554 and I submit that the Court of Appeals clearly found and correctly found that the 10 (k) proceeding is a part of the agency review which becomes the final part of the Board order.

As Mr. Justice White clearly analyzed in the Plasterer's case, the 10 (k) proceeding is an integral part of the procedure which the Board has provided within the ambit of Section 10 of the statute.

In other words, Section 10 of the statute provides that the Labor Board can pursue the unfair labor practice matters and under Section 10 (k) specifically can hear and should hear and determine unfair labor practice matters that are in the jurisdiction dispute area and should decide and award the work in question to one of the two competing unions.

This rationale of the Plasterer's case of course picked up and adopted the CBS decision in which the Board was admonished to make a determination in jurisdictional dispute matters and under Section 10 (k) to award the work to one of the competing unions.

But I think that when we look at the Plasterer's decision, we have to see if there's anything in there, in that decision which would make the 10 (k) proceedings other than an integral part of the unfair labor practice under Section 8 (b) (4) (D).

The Court of Appeals where Justice Morrow found that this was an integral part of the Board's final order which is the unfair labor practice decision in the 8 (b) (4) (D) case.

I submit that that is a correct statement of the law and that the Plasterer's' analysis of the Labor Board procedure fully warrants the application on -- of the principle that the Administrative Procedure Act, Section 554 must apply.

Now, the Board as I said earlier takes a position that the representation case is the same as the 10 (k) hearing.

We submit that this is not the same proceedings because the object of the two hearings is entirely different.

In the representation case Section 9 of the statute gives the Board authority to direct -- to conduct elections and in the course of that authority to conduct elections has the right to hold hearings in which to determine the correct and appropriate bargaining unit which should be the subject of the election.

However, in Section 10 (k) of the -- excuse me, in Section 10 of the Labor Management Relations Act, an entirely different problem is approached that of unfair labor practices.

An integral part of Section 10 is the 10 (k) proceeding by which Congress said to the Labor Board, you may hear rather than may, you must hear and determine the jurisdictional dispute which underlies the unfair labor practice proceeding.

So that when the board decides the 10 (k) aspect, the jurisdictional question, that decision is and of course it is termed a decision and determination of dispute.

That decision is then picked up and absorbed into the subsequent unfair labor practice proceeding should there be an unfair labor practice hearing on the 8 (b) (4) (D) question.

So that within the definition section of the Administrative Procedure Act, Section 551, clearly the 10 (k) proceeding is a part of the final order which the Board does come down with in the unfair labor practice matters.

So in other words, we have an absorption of the 10 (k) decision into the unfair labor practice decision and under the Board's own rules, we find that the 10 (k) matter is an integral part of the final order of the unfair labor practice matter.

2So, we submit that the Court of Appeals was correct when it found that Section 554 does apply because -- to the 10 (k) hearings because the 10 (k) hearing is a part of the agency process leading to its final order.

The arguments presented primarily in the briefs by the Labor Board and ITT is that the detrimental effects will flow from affirming the decision of the Seventh Circuit Court of Appeals.

We submit that these arguments as to detrimental effect are not valid.

The first and basic argument is that there will be a necessity for judicial review of Section 10 (k) determinations if the Seventh Circuit opinion is affirmed.

In other words, if the 10 (k) decision is found to be an adjudication under the Administrative Procedure Act, necessarily, judicial review must follow.

We submit that this conclusion is not warranted and that the Seventh Circuit recognized clearly that the 10 (k) proceeding is only the first step leading to the final order of the Labor Board which is the ultimate unfair labor practice determination.

So that the Board's own rules and regulations proscribed what is a final and therefore reviewable order under the provisions of the Labor Management Relations Act.

In other words, Section 10 (e) and (f) gave to the Labor Board at the -- excuse me, under Section 10 (f) gave to a party aggrieved the privilege of appealing to the Court of Appeals from a final order.

Likewise in Section 10 (e), a Labor Board may petition for enforcement.

The question of what is a final order within the ambit of Section 10 (f) was left to the Board because that Section is silent as to the definition of a final order.

Therefore, under the basic concept and principle that the exhaustion of administrative remedies must be followed by any litigant before an administrative agency, Local 134 and any other litigant before the Labor Board must look at and follow the Labor Board's rules if they are not overruled by higher authority, particularly this Court.

There has been no decision by this Court that the Section 10 (k) hearing is a final and appealable order of the Labor Board and I think in reading the Plasterer's case, we see rather clearly that the two-step procedure, in other words, the unfair labor -- the 10 (k) hearing and the subsequent unfair labor practice hearing and decision are really two parts of one process designed and certainly a clear part of the scheme that Section 10 of the statute sets out.

The Labor Board itself has determined that no appeal shall be, had from any 10 (k) determination.

Now, the decision in the Shell case was cited to this Court, if I might point out that case presents an entirely different question because in that case the Labor Board dismissed the 10 (k) notice of hearing or in other words, said, we are finding -- we are making no decision and finding no basis for awarding the work to either the competing unions.

The Court of Appeals in the Shell case concluded that this was not a final order and therefore was not reviewable under Section 10 of the statute.

I might point out to the Court that this is exactly contrary to the decision of the Ninth Circuit in a Waterways Terminal case where the Ninth Circuit held that the dismissal of a 10 (k) notice of hearing is in fact a final order and therefore an appealable order from the Labor Board.

I should note also for the Court that there is a petition for certiorari filed in the Shell case, so that that issue may be presented to this Court or is presented to the Court and maybe ruled upon later.

Now, the second area that has been argued as the basis for overturning the Seventh Circuit decision is that necessarily, an administrative law judge will have to be appointed to hear the Section 10 (k) hearings if the Seventh Circuit decision holding that the 10 (k) hearing is an adjudication is allowed to stand.

We submit and have argued in part four of our brief that this conclusion does not necessarily follow.

There are number of reasons why that conclusion does not follow.

Initially, the argument was made by Local 134 to the Seventh Circuit that the provisions of the Administrative Procedure Act, Section 556 and 557 which proscribe and require or prescribe and require the administrative law judge be appointed should apply to this case.

Shortly prior to the argument in the Seventh Circuit Court of Appeals, the Court of Appeals for the District of Columbia decided the Bricklayers case.

On the Bricklayers case, the Court of Appeals found that the 10 (k) hearings need not have an administrative law judge appointed to hear those matters.

The Seventh Circuit though interestingly enough did not rule upon the contention of Local 134 that an administrative law judge must be appointed to hear 10 (k) matters.

So that we have in the decision of the Seventh Circuit no finding, no order that the administrative law judge be appointed.

On that basis, we feel that by affirming the decision of the Seventh Circuit, there is no requirement placed upon the Board that it holds its future 10 (k) hearings by appointing an administrative law judge.

Secondly, we submit that Section 554 of the Administrative Procedure Act is divisible and not necessarily an integral part of Sections 556 and 557.

In other words, the nature of those various sections is sufficiently different so that they need not be considered as one complete entity.

There is reference in Section 554 as in Section 553, the Administrative Procedure Act to the hearing requirements of Section 556 and 557.

However, in Section -- Subsection (d), particularly the second paragraph which prohibits the commingling of functions, there is no reference to Section 556.

There is a -- I want to submit an oblique reference to Section 557 but it is our position that it does not necessarily follow from the Seventh Circuit's decision that Section 556 and Section 557 must apply to all Labor Board 10 (k) hearings.

I believe that this Court's opinion through Mr. Justice Rehnquist in the Florida East Coast Railway case recognizes the general principle that and in that case it was Section 553 of the statute, the rule making section.

The principle was recognized that it's not necessarily correct or true that Sections 556 and 557 must apply when the provisions of Section 553 apply to -- in administrative agencies hearing.

We submit likewise that it is not necessarily true particularly under the posture of the case that has come up to this Court from the Seventh Circuit in the nature of the decision that Sections 556 and 557 must be applied to the Labor Board's 10 (k) hearings.

I think that in this regard also, we should notice and note the fact that the Labor Board itself by its own rules has held and or we should say has promulgated the rule that in 10 (k) hearings, administrative law judges need not be appointed and as we argue in our brief at greater detail, we believe that the principle of exhaustion of administrative remedies applies here also, that in other words, as long as the Labor Board's rule is not in and of itself violative of some other provision of the federal statute such as the commingling of functions.

But as long as there is no apparent, obvious violation of the federal statutes, then the Labor Board's rules must be followed and we must as any litigant before the agency must exhaust the remedies, must follow the rules proscribed by that agency for the respective type of matter that comes before the agency.

In this case, the Labor Board says through its rules that the 10 (k) hearing will be heard not by an administrative law judge but rather by one of its other employees.

We submit that there is no conflict between the Seventh Circuit decision and the Labor Board's rules as they now stand which do not require the administrative law judge.

Finally, I think that the argument that the Board has made in its brief that the -- and as Mr. Come has noted here today that it has consistently followed the practice set out in its rule of appointing one of its employees other than an administrative law judge to hear the Section 10 (k) hearings.

And that this is as Mr. Come said, entitled to great weight and if there is no change in policy, I think, it should not be given as much deference as Mr. Come would have it because this Court in the CBS case had noted to the Board that for many years, it had consistently -- the Labor Board that is, had consistently not decided which of the two competing unions in Section 10 (k) hearings would be entitled to do the work in question.

And in the CBS case, this Court very clearly said to the Labor Board, “You have not been doing the function which Congress has said you must perform here, that is decide and award the work.”

So that the fact that the Labor Board has proceeded in this manner for many years while it -- is of some weight, I think is not a persuasive weight and I may point to the Court this.

The Board has never contended that it consistently or even in any case has had the same employee performing the function of hearing the 10 (k) jurisdictional dispute matter and then serving as prosecutor in the subsequent unfair labor practice matter.

In other words, as the Board's brief sets out rather clearly, this is a rare if ever occurrence.

I think that leads us to the -- to our final argument that there is really no injury or harm to the Labor Board by the decision of the Seventh Circuit Court of Appeals.

In other words, the Board is required under the Seventh Circuit decision to not commingle prosecutorial with adjudicative functions and specifically is prevented from appointing the same employee to the role of hearing officer in a 10 (k) hearing as it has performed the prosecutorial role in the subsequent unfair labor practice case.

The Labor Board --

Justice Harry A. Blackmun: Mr. Fitzgerald, have you demonstrated any prejudice in this case?

Mr. Robert E. Fitzgerald: I think the prejudice in this case, Your Honor, Mr. Justice Blackmun is that at the 10 (k) hearing, the administrative -- excuse me, the employee who was the hearing officer made rulings on evidence.

One of his basic rulings was that the union was not entitled to pursue evidence by means of a subpoena as to the execution of the original contract between the company and the other union in this case.

And consequently, the Local 134 was precluded from presenting evidence in support of one of its major contentions, namely, that the collective bargaining agreement between the company and the other union was not valid.

Now, this ruling made by the hearing officer was unfortunately of such magnitude that it not only took away one of our major contentions but then when the Labor Board decided the determination of the dispute, the Labor Board's primary criteria was that there was a collective bargaining agreement between the employer and the other union.

Now, we submit that the Labor Board's reliance upon that contract after precluding our seeking evidence which as part of our position was that the contract was not valid, took away a very substantial part of our argument.

And I might note that one of the questions although not decided by the Seventh Circuit but which we argued to the Seventh Circuit was that there was -- there is a clear decision of the Sixth Circuit, the Dayton Motel's case which holds that the Labor Board should not close its eyes to relevant evidence merely because it may be beyond the Labor Board's time period of the six-month Section 10 (b) requirement.

So, I think we were substantial in --

Justice William J. Brennan: But it might not -- the same thing have happened with another hearing officer?

Mr. Robert E. Fitzgerald: It may well have Your Honor.

I don't know.

Justice William J. Brennan: Then how do you demonstrate prejudice by what you just said?

Mr. Robert E. Fitzgerald: I think that the fact that subsequently the same man who made the ruling on the admissibility of evidence then prosecuted the case in the unfair labor practice hearing and of course part of the unfair labor practice hearing was the validity of the Labor Board's determination of the dispute that this commingled the two hearings and the commingling of the functions I suppose is more appropriate way to state it was psychologically improper and the Seventh Circuit I think, the number, the basis of its decision was that the intent of Section 554 is to prevent this psychological dilemma to be presented to administrative agency employees.

Justice William J. Brennan: Well, I can grant that and since I think the -- what seems to be improper but aren't you -- isn't your position one of penalizing the litigant for the sins of the Board?

Mr. Robert E. Fitzgerald: Well, I believe Your Honor that our basic position is that we should have been allowed to pursue that evidence and to present our full case in the 10 (k) hearing but we were prevented from doing that and I -- as I understand, the Seventh Circuit decision that is the basis and the exact application of the Wong case that the court found applicable to the 10 (k) hearings.

I think the significant part of the Seventh Circuit decision is that it picked up and applied the rationale of the Wong case to the Board's 10 (k) hearing.

Justice William H. Rehnquist: Weren't your case for prejudice be stronger if the -- you would -- had a prosecutor in the 10 (k) hearing than being a judge in the 8 (b) (4) rather than vice versa the way you have it?

Mr. Robert E. Fitzgerald: I think the court well recognized that this was the Board's primary contention.

The Seventh Circuit Court of Appeals recognized this.

This was the Board's primary contention and found the psychological prohibitions which the Wong case and the Administrative Procedure Act in Section 554 set out to be persuasive and I submit that they are --

Justice William H. Rehnquist: Well, let me ask you one other question about that.

Once you have find this proceeding subject to 554, can you think of any reasonable way to find that it isn't also subject to 556 and may require a decision by a hearing examiner?

Mr. Robert E. Fitzgerald: Well, I think our basic position there is that the language of Section 554 particularly in Section D sub -- paragraph two which is the exact language which prevents the commingling of functions makes no reference to Section 556.

As I say, there is an oblique reference to Section 557 but we submit that that language of Section 554 (d) -- subparagraph (d) second paragraph is divisible.

In other words, it talks about, there shall be no commingling of functions between -- in play engaged in the prosecutorial or investigative functions with the decision making functions but it divides the decision making into three different categories: decision, recommended decision which I submit would be a Section 556 type of -- more appropriate than a Section 556 type of decision and agency process under Section 557.

We believe that those are divisible and as we understand the Labor Board rule, this is a decision of the Board, a decision and determination of election and therefore it falls within the decision category and we think that these are divisible.

Justice William H. Rehnquist: Both Subsection (c) of Section 554 which would -- is the provision that would carry it over to 556 and Subsection (d) that you're talking about are general provisions that say that's being subject to Section 554 shall be governed in that manner.

I had not been aware of any construction that could've said that it's subject to 554 (d) but not subject to 554 (c).

Mr. Robert E. Fitzgerald: Well, I submit that the -- our position is that these are divisible because Subsection (c) and Subsection (d) provide for different types of or prevent the agency from engaging in different types of functions.

Now, the -- that appears to have been the construction that the Seventh Circuit Court of Appeals gave to the 10 (k) proceeding in this case because it did not come down with any decision to the effect that administrative law judges must be assigned in the Section 10 (k) hearings.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Fitzgerald.

Thank you, gentlemen.

The case is submitted.

Featured:

NLRB v. Plasterers' Union - Oral Argument

Thu, 23 Aug 2012 18:18:59 +0000

Case:

NLRB v. Plasterers' Union

Media File:

70-63_19711013-argument.mp3

Related Transcript:

70-63_19711013-argument

Transcript:

Argument of Norton J. Come

Chief Justice Warren E. Burger: We will hear arguments next in No. 63, National Labor Relations Board against the Plasters’ Union, No. 65, Texas State Tile & Terrazzo Company against the Plasters’ Union.

Mr. Come you may proceed whenever you are ready.

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

This case is here on certiorari to the Court of Appeals for the District of Columbia Circuit and it presents a question involving the interpretation of the jurisdictional dispute provisions of the National Labor Relations Act.

Now, Section 8 (b) (4) (D) of the National Labor Relations Act, which is set out at page 3 of governments brief, makes it an unfair labor practice for a labor organization to strike or threaten to strike an employer for an object of forcing him to assign work to employees in a particular order labor organization or on a particular trade craft or class rather into employees in another labor organization or in another trade craft or class.

Now, Section 10 (k) of the Act provides that whenever it is charged that any person has engaged in an unfair labor practice within the meaning of Section 8 (b) (4) (D), the board instead of immediately proceeding in the regular complaint of unfair labor practice fashion that it does with other unfair labor practice charges hold that unfair 8 (b) (4) (D) charge in abeyance because 10 (k) states that the board is empowered and directed to hear and determine to dispute out of which such unfair labor practice shall have arisen unless parties to such dispute, submit to the board, satisfactory evidence that they have adjusted or agreed upon methods for the voluntary adjustment of the dispute.

Now, a board sense 10 (k) was added to the Act in 1947.

As interpreted the phrase, “A party to such dispute to include not only the competing Unions, but also the employer who made the work assignment.”

Hence, unless all three parties have agreed upon methods for the voluntary adjustment under the dispute, the board itself must determine the dispute under Section 10 (k).

The Court below via a divided vote held that the parties to such dispute means only the competing unions and thus, since they but not the employers were bound by a voluntary method of the adjustment.

The board had no power to re-determine the dispute under Section 10 (k) and correctness of this interpretation is the issue that we have here.

Now, the underlying facts are briefly these.

A Plasters’ Union picketed two different jobs in furtherance of its demand that the work of applying a code of Portland cement mortar to the walls, upon which tile was to be thereafter installed should be assigned to employees represented by the Plasters rather than to those represented by the Tile Setters Union.

The first job involved, in addition to our library at University of Houston.

The general contractor of Southwestern had sub-contracted the, a Tile job to Texas State, a tile contractor employing the members of the Tile Setters Union and it sub-contracted the job of installing the tile.

The Plasters claimed the mortar work as theirs and when that claim was rejected by Texas State, the sub-contractor, they submitted the dispute to the National Joint Board for the Settlement of Jurisdictional Disputes, a tribunal to establish by the Building Trades Department of the AFL-CIO and certain employer groups.

Both Unions by virtue of their affiliation with Internationals who are members of the Building Trades Department are bound by decisions of the Joint Board.

But neither Texas State; the sub-contractor, nor the Association, to which it belonged, had agreed to be bound by the decisions of the Joint Board.

The Joint Board awarded the disputed work to the Plasters finding that the matter was governed by a 1917 agreement, between the two International Unions and a 1924 decision interpreting that agreement.

Parenthetically, I might point out at this point that the whole dispute arose because of the development of a new bonding agents that were not discovered until 1950, but nonetheless the Joint Board awarded this work to the Plasters based on the 1917 agreement.

When Texas State refused to change its work assignment in accordance with the Joint Board award, Plasters commenced picketing at the job site to force such a change.

Southwestern the general contractor filed charges with the board alleging that the picketing violated Section 8 (b) (4) (D) for the Act.

The second job involved the re-modeling of the Rainbow Bakery.

There Martini, a tile contractor under contract with the Tile Setters Union was assigned the job of a installing the tiles.

The Plasters are claiming the work, began picketing.

Again Martini was not bound by the procedures of the Joint Board and accordingly, it filed unfair labor practice charges with the board.

The Board's Regional Director finding a reasonable cause to believe that the charges had merit and finding that neither of the employers here at Texas State or Martini were bound by a voluntary method of adjustment proceeded to a 10 (k) hearing, at which all the competing Unions and the employers involved presented argument and evidence.

It was a seven-day hearing in support of their respective positions.

The board on a basis of the records thus developed and in conformity with this Court’s decision in CBS which directed the board to consider all relevant factors and determining the jurisdictional disputes, so the board considered the collective bargaining agreements between the parties, employer area and industry practice, relevant skills and efficiency of operation, agreements between the two Unions and the Joint Board award on the basis of -- after considering all of these factors and the evidence adduced, the board concluded that employees represented by the Tile Setters rather than those represented by the Plasters were entitled for the work in dispute.

In short, it came out differently than the Joint Board had, which had awarded the work to the Plasters.

When the Plasters refused to comply with the board's determination of the work dispute, the Board’s General Counsel at that point issued the complaint upon the 8 (b) (4) (D) charge which had been held in abeyance in the expectation that the Section 10 (k) determination would have to settled the matter.

It did not and under the scheme of the statutes you pick up the unfair labor practice into the case again, complaint issued, it went to the board, the board concluded that the picketing by the Plasters violated Section 8 (b) (4) (D) and it issued a cease and desist order, requiring the Plasters to cease this activity and to post appropriate notices.

As indicated earlier, the Court below refused to enforce the boards order on the ground that the board had no power to re-determine the dispute.

Now, as I indicated at the outset, the abstention clause in Section 10 (k) comes into play when the parties to such dispute, submit to the board, satisfactory evidence that they have adjusted or agreed upon methods were voluntary adjustment of the dispute.

Now, Congress did not define who the parties to the dispute were and it did not indicate whether dispute means, the underlying jurisdictional dispute or it means the dispute and the jurisdictional does a strike which has emanated from the dispute.

The Court below construed the term such dispute to mean merely the basic work controversy and it concluded that only the two Unions were parties to that dispute because in the words of the Court below, the employer in a jurisdictional dispute is a neutral caught in the crossfire between the disputing Unions, and unable to satisfy either.

He cares not how the dispute is decided, but once merely that it be decided.

Now, we submit that therein lies the fundamental error in the Court’s reasoning, namely that the employer is necessarily a neutral party to a jurisdictional dispute.

Justice Potter Stewart: What is the language you just quoted, you are putting from what, the CBS opinion in this Court or the Court of Appeals opinion in this case?

Mr. Norton J. Come: I am quoting from the Court of Appeals opinion, Justice Stewart at record 375.

Chief Justice Warren E. Burger: That is attached to your brief too, is it not, in the appendix?

Mr. Norton J. Come: It is in the yellow of the above appendix, 375.

Justice Potter Stewart: The Court was relying on --

Mr. Norton J. Come: The court was --

Justice Potter Stewart: Dictum in this Court in the CBS case?

Mr. Norton J. Come: Yes, Your Honor.

It purported to find support for its position in this Court's opinion in CBS, where this Court did refer to a jurisdictional dispute as a dispute between two Unions, but we submit that no one would quarrel with that characterization as a general proposition.

The issue in CBS was not this issue.

This Court had no occasion to reach it because in CBS, none of the parties were bound by a voluntary method of adjustment.

The only question was conceding that the board had power under Section 10 (k), did it properly exercise that power when that merely rubber stamped the employer's work assignment and did not undertake to consider all the other relevant factors like in the (Inaudible) and in this Court had said that the board had to determine the dispute in the conventional way that an arbitrator would by considering all the factors and the board certainly complied with that obligation here.

Now, furthermore, in CBS, you had a somewhat a typical situation in that the employer there, employed both groups of employees.

He employed state unions and he employed the technicians.

In that sense, in that kind of a situation, perhaps more so than in others, he is relatively indifferent as to which group does the work.

It is not the typical case nor is in the situation here.

In the typical case which is typified by the situation in the building contraction industry, the employer's economic interest will be directly affected by the assignment of work and thus in no meaningful sense and he said to be a neutral or indifferent as to its outcome.

Indeed, John Dunlap, the first Chairman of the Joint Board has stated in a passage that we quote in our brief, the fact that some unions work exclusively as a matter of policy or custom for particular contractors factors tends to convert competition among contractors also into jurisdictional disputes between Unions, where apparently the dispute is between a contractor and a Union on one side against another contractor and Union on the other and this is certainly what we had in this case.

Indeed in recognition of the employer's interest, the National Joint Board from its inception has included the employer groups in its structure and is operated under the explicit principle that an employer is not bound by its procedures unless he has specifically so agreed.

Turning to the facts here, neither Texas State nor Martini has a collective bargaining agreement with the Plasters’ Union, and both had one with the Tile Setters Union.

Neither employed Plasters and a word of work to Plasters, would have required this contractors either to hire a new complement of employees whom they believe were less skillful and who is rates were higher than those of Tile Setters or to give up their sub-contracts.

In these circumstances, it can hardly be said that Texas State or a Martini or a neutral as to how the work assignment dispute was resolved.

Now, the Court below supported its reading of the statute by relying on the fact that the employer is not bound by a Section 10 (k) determination of a board, although, he is not a party.

Now, we submit in the first place that this fact does not lessen the employer’s direct interest in the resolution of dispute and relegate him to the status of a neutral; here is not how it is decided.

Furthermore, a Section 10 (k) determination in favor of the striking Union is enforcible against the employer in the sense that the Union is free to bring strike pressure against him because there is an unless clause in Section 8 (b) (4) (D), that accepts from the bond of 8 (b) (4) (D), a situation strike where the employer is failing to conform to an order or certification of the board.

So that if the striking Union prevails in a 10 (k) determination and the employer does not comply with the award and reassign the work to it, it is free to bring economic pressure on the employer.

So that in a very real sense there is pressure on the employer here to comply with the 10 (k) award.

As a matter of fact, nobody is really found in a technical sense by a 10 (k) award because even the winning Union does not get the work in the sense that the 10 (k) determination requires the employer to change his assignment.

All that it does is to give them a right to bring economic pressure as I have indicated.

Now, the third support for the principle support for the Court below decision --

Justice Byron R. White: What does a 10 (k) order say by the way?

I mean, what does a typical one say?

It is phrase in terms of designating the bargain representative for the particular work assignment?

Mr. Norton J. Come: No, let us look at the one here which is set forth on the page 54 of the appendix and the board says, “Para layers employed by Texas States and Martini Tile who are represented by the Tile Setters are entitled to perform the work of applying the coat of Portland cement.

Plasters Local is not entitled by means prescribed by Section 8 (b) (4) (D) to force a require.”

Justice Byron R. White: Was that the kind of an order that the unless clause (D) talks about?

It talks about an order determining the bargaining representative for employees performing such work, is that a 10 (k) order?

Mr. Norton J. Come: Yes, the board -- the general counsel and the board have so interpreted that as applying to a --

Justice Byron R. White: To a 10 (k) order?

Mr. Norton J. Come: To a 10 (k) order, yes Your Honor.

Justice Byron R. White: Because they are really saying that here is some work to be done and the bargaining representative for that work is a certain Union?

Is that what a 10 (k) order says?

Mr. Norton J. Come: Well, a 10 (k) order does not run to a particular Union because otherwise you get into trouble with the 8 (b) (2) and 8 (a) (3), Your Honor.

It goes to employees of the craft who maybe represented by the particular Union.

It does not run to the particular Union as such --

Justice Byron R. White: There is nobody in this case disputes that, that unless clause indeed refers to a 10 (k) --

Mr. Norton J. Come: Not to my knowledge.

Unknown Speaker: Mr. Come?

Mr. Norton J. Come: Yes sir.

Unknown Speaker: In the 10 (k) proceeding --

Mr. Norton J. Come: Yes sir.

Unknown Speaker: The employers were what -- parties made such by board (Inaudible)?

Mr. Norton J. Come: They were parties of by the board.

Unknown Speaker: And yet, there is no order and it goes against to the Union?

Mr. Norton J. Come: No, Your Honor because the nature of the 10 (k) proceeding is that, it does not even go against the Union.

All it does is to make a declaration of who is entitled to the work and who is not entitled to strike the work.

Unknown Speaker: And so, why is that the -- I gather the board, it is almost made the employers situation a party of that proceeding --

Mr. Norton J. Come: Yes, Your Honor.

Unknown Speaker: Of by force of what?

Justice Byron R. White: Is it the employer that starts the -- he has to file a complaint before 10 (k) is triggered, does he not?

Mr. Norton J. Come: Generally, the employer has been the charging party.

He does not have to be --

Justice Byron R. White: (Inaudible)

Mr. Norton J. Come: A charge maybe filed by any person.

Justice Byron R. White: Here it was the employer.

Mr. Norton J. Come: And here it was the employer and I would say all 90% of the case, it is the employer.

Justice William J. Brennan: But I gather even if the employer was not to charge the party, the employer is made a party by force?

Mr. Norton J. Come: That is correct and at that flows from the general provision of the board's rules which refers that, which defines party as a generally anyone who has an interest in the proceeding.

So that the board has from the beginning, treated the employer as a party to a --

Justice William J. Brennan: But it is not but no case is the order (inaudible) from the one that presented this case?

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

Justice William J. Brennan: Specifically, that is under the employees of the employers and (Inaudible)?

Mr. Norton J. Come: Yes, Your Honor.

Justice Harry A. Blackmun: Mr. Come, may I interrupt (Inaudible)?

Mr. Norton J. Come: Yes.

Justice Harry A. Blackmun: I know titles have very little significance, but the 10 (k) title is hearing on jurisdictional strikes, there was never a strike here, was there?

Mr. Norton J. Come: There was, Your Honor, in the sense that the picketing is regarded as a strike.

You had picketing by the Plasters in both cases to change the -- to get to work and that would be deemed a strike.

As a matter of fact, the operative part of 8 (b) (4) (D) says, unfair to engage or induce or encourage any individual to engage in a strike or refuse on the course of this employment, the working line any goods and the it --

Justice Harry A. Blackmun: In any event, you read no restrict the influence into the title?

Mr. Norton J. Come: No, Your Honor because I think that in the labor parlance strike and picketing are pretty synonymous.

Now, I was just going to say that the conclusion that the Court below found a support for its position in the legislative history of 8 (b) (4) (D) and 10 (k).

Unknown Speaker: Let us talk about it.

Mr. Norton J. Come: Yes.

Unknown Speaker: How long that the board could (Inaudible)?

Mr. Norton J. Come: Since, 10 (k) was added with the statute in 1947.

Unknown Speaker: What was the first case?

Mr. Norton J. Come: The first case is a case called Westinghouse --

Unknown Speaker: What year?

Mr. Norton J. Come: That was 1949, 83 NLRB 477.

Unknown Speaker: Was that in 1940?

Mr. Norton J. Come: In 1949.

Unknown Speaker: (Inaudible)

Mr. Norton J. Come: Yes, Your Honor, we have listed the -- some of the cases in footnote 6 at page 15 of our brief.

The Court below, as I indicated found support for its position in the legislative history of 8 (b) (4) (D) and 10 (k).

We submit that its reliance is misplaced because as judge Mackinnon pointed out in his dissent in the Court below, Congress really did not focus upon this particular problem in the legislative history.

We will find statements in the legislative history describing a jurisdictional dispute as a dispute between two Unions which is a truism that nobody would seriously quarrel with.

They have their origin in a dispute between two Unions or between two employee groups, but it does not follow that the employer has no interest certainly where as must be the case before the board can get into the Act he has been implicated by a strike or a strike threat.

Secondly, the Court relies on the fact that Senator Morse who proposed a 10 (k) provision which as he proposed that gave the board the alternative of either deciding dispute for itself or appointing, an arbitrator, which was taken out of conference indicated that he felt that this would be inducement to the Unions as it was in the war labor board days to settle the jurisdictional disputes themselves, as you had hanging over them, the club of government determination of the dispute.

Now, we submit there is nothing in consistent between desire to have the two unions and resolve it for themselves on the one hand and on the other saying that if they are not able to resolve it by themselves, a binding of final determination cannot count if it excludes the employer which is the problem that we have here.

Thank you, Your Honors.

Chief Justice Warren E. Burger: (Inaudible)

Argument of Wayne S. Bishop

Mr. Wayne S. Bishop: Mr. Chief Justice and may it please the Court.

In the few minutes that I have here, I would like to emphasize two points of statutory language which I think are relevant to the support for the determination of the board here.

As Mr. Come indicated in his argument, the real question here in terms of statutory language is what did Congress mean by who are the parties to the dispute which the unfair legal practice arouse.

It is our intention that this dispute must have arisen out of the union’s disagreement with the employer's work assignment, not just the union’s disagreement with another union over who is entitled to claim this work.

I think this can be illustrated by the facts in this case, in the appendix on pages 17 to 19, as factual sequence have indicated.

The factual circumstance was that the Respondent Union, the Plasters' representative sought and demanded the work in dispute here in a series of meetings over several months, after the employer had indicated that he would assign the work to the Tile Setters.

The Tile Setters were the employees of this employer who were members of the Tile Setter Union.

The employer had no contract with the Plasters.

There was no picketing over this several months, while the parties discussed this.

Justice Byron R. White: (Inaudible) to no unfair labor practice complaint to be filed and no 10 (k) proceeding could be started?

Mr. Wayne S. Bishop: That is right.

Not until the picketing occurred and with regard to the question --

Justice Byron R. White: Let us assume the picketing does occur --

Mr. Wayne S. Bishop: Well --

Justice Byron R. White: And the --

Mr. Wayne S. Bishop: I think the question is why does a picketing start?

That explains who dispute is really with?

The picketing starts because the employer has given indication to the union or the union has some reason to believe that the dispute or that the employer is going to assign the work in question to the other union and that --

Unknown Speaker: Even is that going to assign for the picketing of the employees representative?

Mr. Wayne S. Bishop: I think that -- that is right?

Justice Byron R. White: But if before the employer gets to the board with a complaint, the picketing ceases although the dispute has not ceased, there can be no 10 (k) proceeding?

Mr. Wayne S. Bishop: If there is no active picketing, I do not see how before the charge is filed.

Justice Byron R. White: Let us assume there is picketing and a complaint is filed and a 10 (k) procedure is starting and then picketing then it ceases?

Mr. Wayne S. Bishop: I think it would depend upon what circumstances that the picketing ceases.

I think what --

Justice Byron R. White: Now, the parties say that there is no unfair labor practice is going on and it cannot be any 10 (k) procedure and the union say that?

Mr. Wayne S. Bishop: I think that the -- if the unions at that point indicate that there are -- they have settled the dispute, if one union issues indication that it has disclaimed any interest in the work, then the board under its safe way doctrine will not hold the 10 (k) --

Justice Byron R. White: So that -- even though the employer object.

Let us assume the --

Mr. Wayne S. Bishop: I think there has to be a disclaimer at that point.

Justice Byron R. White: Well, one union disclaims it but the employer says, I am sorry.

The disclaiming union is the union; I want to do the work.

Mr. Wayne S. Bishop: Right, if that --

Justice Byron R. White: Let us assume the Tile Setters in this case have disclaimed.

Mr. Wayne S. Bishop: That the Tile Setters do disclaim --

Justice Byron R. White: And the employer says I do not want the Plasters.

Mr. Wayne S. Bishop: Then the board --

Justice Byron R. White: I want the Tile setters --

Mr. Wayne S. Bishop: Then the board dismisses the 8 (b) (4) (D).

Justice Byron R. White: Well, then how could it mean that the party says that?

Mr. Wayne S. Bishop: Because the --

Justice Byron R. White: Includes the employer?

Mr. Wayne S. Bishop: Well, there is a -- there an indication to the statutorily language under 8 (b) (4) (D) that Congress intended under the similar circumstances that there would still be an 8 (b) (4) (D), that is by the change in the language and 8 (b) (4) (D) where under the Senate bill as originally passed, the Senate pass language that said the dispute over the work assignment has to be between the two unions involved and conferences was changed to make it broader than the two unions involved but also the none union employees of the employer.

Under that --

Justice Byron R. White: I suppose if one union disclaims it, what that really means is that it is refusing to do the work?

Mr. Wayne S. Bishop: That was -- it really means this --

Justice Byron R. White: So why would the board ever dismiss it?

Mr. Wayne S. Bishop: It really means that there is no active jurisdictional dispute because --

Justice Byron R. White: Well, there is.

The employer wants the Tile Setters to do and the Tile Setters refuse to do it?

Mr. Wayne S. Bishop: But the --

Justice Byron R. White: Why do you -- why do you think it does?

Mr. Wayne S. Bishop: There really is -- the employer under that circumstance has option of assigning to someone else.

He is not forced to assign it to the picketing union.

He may assign to his, to other, his own employees.

But the absence of two -- the absence of a claim under that circumstance means no 8 (b) (4) (D).

What would happen if the employer does not want the Plasters to do the work?

Justice Byron R. White: You think that is the relevant in how you define parties that under --

Mr. Wayne S. Bishop: Well, I think not because I think what happens is the employer assigned to work to whomever he wishes at that time, the Plasters then comes back again.

Justice Byron R. White: Well, then it is just a question of the way the union, how the procedure then for the union.

I mean, instead of coming up on these facts, the unions can always abort the 10 (k) by one disclaiming it, they really settled the dispute.

All they have to do is that one more step to their settlement.

Namely a disclaim.

In this case it has no importance as else where.

Chief Justice Warren E. Burger: That simply means there is no dispute existed?

Mr. Wayne S. Bishop: That is right.

There is no reason to file an 8 (b) (4) (D) at that stage.

There is a -- there is no dispute --

Justice Byron R. White: That is filed, it is been filed and the --

Mr. Wayne S. Bishop: What?

Justice Byron R. White: And the employer says the dispute is not settled.

I do not want the Tile Setters.

I want the Tile Setters not the Plasters.

Mr. Wayne S. Bishop: But if the Tile Setters do not want the work, I think there is no basis under which Congress or board could force the Tile Setters to take that work.

It is the employer's option.

He may assign it to another group, the Plasters comes back and pickets at that time, this group does not complain, we have our 8 (b) (4) (D) and our 10 (k) determination.

Justice Byron R. White: Well, the power to move the 10 (k) proceeding is in the two unions?

Mr. Wayne S. Bishop: There is a power to -- can move to the 8 (b) (4) (D) also, but it does not move it in terms of the employer ultimately.

The employer can still assign the work according to his choice and we then go back to the same proceeding again.

But the --

Chief Justice Warren E. Burger: Going back to this illustration, if the Tile Setters simply refuse to do the work by a disclaimer, is there any power in the Congress or the employer, anyone else to make them do this, have they?

Mr. Wayne S. Bishop: I think not.

I think this is with regard to the question that Justice Brennan asked earlier.

Chief Justice Warren E. Burger: Then your dispute has evaporated?

Mr. Wayne S. Bishop: I would, could agree Mr. Chief Justice and I think the --

Justice Byron R. White: Could he fire them for refusing to do the work?

Mr. Wayne S. Bishop: If they are employees of his, I think, he possibly good as long as there is some discriminatory motive or anti-Union discriminatory motive, I think that would be a basis under which he could discharge employees of failing to carry out the work assignment because they then --

Unknown Speaker: Anyway then, did you agree that do you have power (Inaudible)?

Mr. Wayne S. Bishop: I agree with the board's Safeway doctrine, but I do not think it is entirely controlling in the circumstances that here.

I think the language 8 (b) (4) (D) shows this because Senator Kemp in the conference agreement, he explained to the rest of the senate, rest of the senate that the intention in changing the language of 8 (b) (4) (D) was to permit the same statutory protection where an employer assigned work to his own non-union employees as when there was a two union dispute over the work.

Under the circumstance, it seems quite indicative that Congress meant that, that would be a dispute, essentially between the union and the employer.

It is not into union’s dispute, so there are not two quarreling unions under that circumstance.

The Congress must admit under that circumstance that the board to be a party to a 10 (k) hearing because a 10 (k) hearing would not have much relevance to a reasonable determination.

If only the one union was there presenting their position, the unrepresented or non-Union employees had ever power under their own resources, is to represent themselves.

The employer would be the party there in the 10 (k) hearing, representing the work assignment.

We think this is very strong indication of intent on the part of Congress to make the party -- the employer party to the dispute.

I would like to make one comment with regard to the question that Justice Brennan was asking about with regard to the board not binding the employer in the 10 (k) award.

I think this ties in entirely, with intra scope of the Act, whereby Congress has intentionally kept the NLRB and the government out of the substantive terms and conditions of employment.

I think this is further indication what Congress did in 10 (k) that they could have given the board authority to issue a 10 (k) order which would have bound the employer and the union.

That would have made a compulsory arbitration of determination, but Congress decided not to do that and it bound neither of the party.

All it did was restrict what circumstance you could have overlook -- to picket over this and this ties in entirely with Congress' entire approach to the Act of --

Unknown Speaker: What if (Inaudible) issue before us as I understand is whether in the board should have abstain when there is --

Mr. Wayne S. Bishop: That is right!

Unknown Speaker: So the question let me just apply to you.

I suppose do not go with that, actually whether or not the proceeding is important, whether or not it has to whatever the case maybe, the issue we have to decide is whether the (Inaudible) initiating the proceeding in the first instance?

Mr. Wayne S. Bishop: Within the labor board in --

Unknown Speaker: That is right.

Mr. Wayne S. Bishop: Yes!

Justice Byron R. White: What if the union would set exactly could be in that set and also said that they have union with the client (Inaudible)

Mr. Wayne S. Bishop: That is an order 8 (b) (4) (D) charge.

In that regard, Justice White, I think it is important to some of the cases that are cited in the --

Justice Byron R. White: Whatever done is one of the unions to if they could be really settled the dispute to also define -- why would the union to gets doom then fell over operative, always be willing to define if there is a Federal.

Mr. Wayne S. Bishop: Through the Joint Board procedures.

Justice Byron R. White: If they are bound by that, there is nothing we can do about it, and maybe agreed to it and it is really set.

I would allow if ever gone with the union with the (Inaudible)?

Mr. Wayne S. Bishop: If they disclaim the work and the work is assign to the other union, you said the losing union, under a 10 (k)?

Justice Byron R. White: No, I said the settlement could union, the union could settle their between themselves, so could get something to work, alright?

Well, the union who is at work where I would think it would always be willing the disclaim.

And a board any of possibility of (Inaudible)?

Mr. Wayne S. Bishop: Well, the union who a did not get the work under that circumstance, if he does not adhere to their settlement for reasons of his own, then has the opportunity if the case does go to the NLRB of having the board decide that he is entitled to the work.

Justice William J. Brennan: (Inaudible)

Mr. Wayne S. Bishop: It has not been ultimately settled, right there.

I think that is more a problem of a voluntary settlement procedure, having provisions for enforcement of their decisions, among those parties.

It does not really relate to the board.

Justice William J. Brennan: I do not know (Inaudible) Whatever maybe the case it was settled I do not know what we have here -- what we have here is whether the board (Inaudible) proceeding, and facts of this case so whether the extension clause.

Mr. Wayne S. Bishop: I am sorry.

Justice William J. Brennan: Because it is forward for to move it that only has.

Mr. Wayne S. Bishop: Yes, I am sorry Mr. Justice Brennan.

I thought I had done, that I have no quarrel with the Safeway decision, at all.

I think it is in the absence of active claims for the work.

The board does not proceed on an 8 (b) (4) (D) or 10 (k) charge.

Justice Harry A. Blackmun: In this connection, Mr. Bishop, what was the practical result as to this job in Houston with these jobs?

Who did the work done (Inaudible)?

Mr. Wayne S. Bishop: The practical result was that the Tile Setters, who were the employers represented by the Tile Setters did the work.

They were the employees of the contractor, and they received the assignment of the NLRB.

Justice Harry A. Blackmun: Well, does this tie-in with Justice White's comment then that there really was not a settlement between the two unions?

Mr. Wayne S. Bishop: There was not a binding settlement between the two unions.

Chief Justice Warren E. Burger: Despite with the Joint Board (Inaudible)?

Mr. Wayne S. Bishop: The Joint Board issued its determination, but one of the unions did not follow the Joint Board determination.

My time is expired.

Chief Justice Warren E. Burger: Thank you Mr. Bishop.

Mr. Capuano?

Argument of Donald J. Capuano

Mr. Donald J. Capuano: Mr. Chief Justice and may it please the Court.

The board, in its argument arrived to conclusion, mentioned in answer to a question that 23 years of NLRB precedent, which is involved in this case.

It is certainly true that this decision or the board’s position in this issue has been followed for 23 years.

However, I think it is fair to state that there is more reasoned analysis in the decision of the Court of Appeals, which is on review here than there is in the sum total of every case, the NLRB has decided on this issue, in 23 years.

The NLRB simply has refused to analyze its position, the legislative history, this Court's decision in CBS, simply as what the petitioner states in his brief, couches its decisions in statutory terms always denying the voluntary adjustment procedure, any credibility when the two unions or two labor groups are bound.

Chief Justice Warren E. Burger: Well is it not correct that the Courts have historically allowed the board that is presumed of expert experience, wide latitude in dealing with the practical aspects of these things?

Mr. Donald J. Capuano: I think Mr. Chief Justice, the Courts have allowed the board wide latitude in dealing with practicalities but I think what we are dealing with here is policy, a policy that Congress set down in Section 10 (k) and therefore, the board does not have the latitude it would, if it was simply applying a mechanical doctrine.

Chief Justice Warren E. Burger: Well, as a practical then I take it you disagree with the statement of the Court of Appeals, that the employer is just an innocent bystander who does not care one way or the other, about the outcome of the jurisdictional dispute?

Mr. Donald J. Capuano: No, I agree with that statement because I believe, what Judge Leventhal was stating there, is what the legislative history reflects and that is, that this section of the Act and as this Court has said, in fact, the whole dominant theme throughout Section 8(b), 8 (b) (4) is to protect neutral employers.

Just last term, as a matter of fact, in the local 825 Operating Engineers case at 400 U.S., this Court again reiterate it, what it said in National Woodwork and we believe it was actually, affirming, re-affirming what it said in CBS.

The protection of this Section of the Act 10 (k) and 8 (b) (4) is to protect an employer's neutral interest.

Now, Judge Leventhal recognized, and we certainly have conceded in our brief that there are employers who have preferences.

Of course, there are, no one would deny that and Judge Leventhal recognized it, but the Act, this particular Section of the Act, for these two Sections were not designed to protect that preference.

They were only designed to protect the neutrality of that employer, when he is caught between the two warring unions.

Now, he may also have a preference, but he can support that preference, once the 10 (k) decision is decided where the two unions agree voluntarily, then one union goes back to deal with the employer and at that point under the whole structure of the Act, his economic interest can be protected by self help and we believe that is exactly what Judge Leventhal was saying and that is exactly the intent of the whole Act.

Justice Thurgood Marshall: But in this case, the Plasters were not working that at all?

Mr. Donald J. Capuano: Oh Yes, Justice Marshall, the Plasters were working there for a plastering contractor.

They are on that job, in fact --

Justice Thurgood Marshall: They are on that job?

Mr. Donald J. Capuano: They were the ones who put the scratch coat which is the preliminary coat on the wall at to which the Tile Setters came and put their float coat on.

Justice Thurgood Marshall: They were regular employees of the contractor?

Mr. Donald J. Capuano: Well, now, they were not regular employees of the Tile Setting contractor, they were regular employees of the Plastering contractor who also had a --

Justice Thurgood Marshall: (Voice Overlap)

Mr. Donald J. Capuano: Yes, who also had a sub --

Justice Thurgood Marshall: They were not employees of the Tile sub-contractor?

Mr. Donald J. Capuano: No sir.

That is correct!

Justice Thurgood Marshall: So, would not the sub-contractor have an interest in protecting his own employees?

Mr. Donald J. Capuano: Yes sir, he has --

Justice Thurgood Marshall: Then he is in outside the office?

Mr. Donald J. Capuano: He has the interest but Congress set --

Justice Thurgood Marshall: But it is not sufficient you say?

Mr. Donald J. Capuano: No, I say, the Congress said in the 10 (k) proceeding, that is not were his interest was going to be protected.

His interest was going to be protected after the two unions had settled between themselves, this dispute and then, one union would go back and deal with the employer.

I mean, his interest is being protected in this manner just as if his Tile Setters employees during the course of that job said they wanted 20 cents an hour more.

Justice Thurgood Marshall: Well, I just think realistically, that an employer would -- the last thing he would want would be one more union to deal with, am I right?

Mr. Donald J. Capuano: That may very well be the case, yes, but that is not the interest that Congress should be protected.

Justice Thurgood Marshall: Why?

Mr. Donald J. Capuano: Because you see Justice Marshall, if Congress had wanted to give him that sort of protection, they would have drafted 10 (k), so that he was bound by the decision.

As it stands now, under Section 10 (k), the employer can demand a board hearing, he can demand a board hearing, I mean, a board order which is going to bind the unions, but which then the employer can completely ignore.

Now, we think if Congress wanted to do which you suggested, they would have said, alright, Mr. Employer, you are now going to be bound by this 10 (k) award, but Congress was not about to adopt any form of compulsory arbitration binding the employer and the unions in the Act.

Now, we think that the language of Section 10 (k) supports our position very clearly.

The last sentence states, and we have quoted it in our brief on page 8, and our brief is the red one, “Upon compliance by the parties to the dispute with the decision of the board or upon such voluntary adjustment of the dispute such charge shall be dismissed.”

Well, as I just indicated, the employer does not have to be complying with the decision at all.

If the two unions involved comply the charge is going to be dismissed, the employer can go on making the assignment as he pleases.

Now, clearly, if the employer does not have to comply, certainly the words parties to the dispute in that last sentence cannot include the employer.

The first sentence also uses the same phrase, parties to such dispute.

Now, again, if in the last sentence, it means only the disputing unions are labor groups, we submit, it cannot mean anything differently in the first sentence, but more importantly, the first sentence with regard to the word dispute, states and we have this quoted at page 10 of our brief, “The board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.

Now, the board in its brief and argument, has said, well, the dispute there means the jurisdictional strike.

We submit the dispute cannot mean the jurisdictional strike.

That the jurisdictional strike is the unfair labor practice and if you made a substitution of terms in that very sentence, it would read that the board is empowered and directed to hear and determine the dispute out of which such strike arouse.

The strike is the unfair labor practice and I think a short analogy would be in a discriminatory discharge case, that is an unfair labor practice.

The discriminatory discharge itself is the unfair labor practice.

The unfair labor practice does not arise out of the discriminatory discharge and we simply cannot understand the basis of the board’s argument that the strike equals a dispute.

And we also believe that this Court, in CBS answered that question and in answering that question, it was a necessary predicate to the Court's decision in CBS because I think I should go back a little bit prior to CBS, to recall just what the board was doing.

For 13 years, the board, when it held the Section 10 (k) case, was simply determining the validity of the jurisdictional strike.

The board would state in its decision, whether the striking union was entitled to the work because of an outstanding board order, certification or collective bargaining agreement.

If it was not, then the employer's assignment was affirmed every time.

Therefore, the board was equating the dispute that it had to determine with the validity of a jurisdictional strike.

When the case came to this Court, Justice Black writing for the unanimous Court, very clearly and necessarily determined what the word dispute means in 10 (k) and if I make quote him and this is at the bottom of page 14 of our brief, “In the clause, the dispute out of which such unfair labor practice shall have arisen, can have no other meaning except a jurisdictional dispute under Section 8 (b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer.

Now, we submit --

Chief Justice Warren E. Burger: It does not say that is the only thing it is.

That is a statement of obvious truth. Dispute is, what you have just read, but does not say that that is all it is and that is the only way you can have a dispute, does it?

Mr. Donald J. Capuano: I believe Mr. Chief Justice that the way that it is written, referring specifically to the clause in Section 10 (k) that he is clearly talking about the use of the term in 10 (k).

Now, of course in another situation not involved with 10 (k), dispute may mean something else, but this is why we believe that this question as to what dispute means in 10 (k) has been settled because the Court there was specifically referring to 10 (k).

With regard to the voluntary adjustment or abstention provision of 10 (k), this Court in CBS also made reference to it and explained that the Court -- the board in the case before the Court then, had to hold a 10 (k) hearing because, and I am paraphrasing the Court, because the two unions, the technicians and the state (Inaudible) were not able to settle their dispute.

The Court stated, and again this is quoted on page 14 of our brief, “Section 10 (k) offers strong inducements to quarreling unions to settle their differences by directing dismissal of unfair labor practice charges upon a voluntary adjustment of jurisdictional disputes.”

The Court of Appeals here recognized that once it had determined, what dispute is covered by Section 10 (k), the parties to the dispute for the purposes of the abstention provision necessarily means the two disputing labor groups are labor unions.

It can have no other meaning.

Now, we rely of course, as I have stated on CBS and we submit that this Court in CBS, relied upon the legislative history of this Act and the thrust of the Act.

The Court, went into the legislative history, read it thoroughly and while we do not think a reanalysis is necessary here, I think briefly, I would like to say a few words about the legislative history.

The House Bill, that was introduced in 1947, did not contain any provision similar to Section 10 (k).

Section 10 (k) was introduced in the Senate by Senator Morse.

Unfortunately in this particular situation, we have a very clear statement as to where the idea for Section 10 (k) developed.

Senator Morse explained in the legislative history, that while he was a member of the War Labor Board, one night, a very serious jurisdictional dispute occurred between two unions which resulted in a work stoppage.

Senator Morse stated that the War Labor Board called the unions together and they told him to get the men back to work or if they did not, the War Labor Board was going to appoint an arbitrator to settle the dispute.

Now, the only fair reading from this point of the legislative history is that the two unions got together and settled the dispute because there is somewhat of a gap there.

Senator Morse simply goes on to say, the men went back to work, but I think the only fair reading is that they got together, settled dispute then they went back to work.

But in any event, Senator Morse then goes on to explain that he decided, the War Labor Board ought to have a policy to avoid these situations in the future.

So, he proposed a resolution which became that policy, which said to the two unions involved, you have 24 hours to settle the jurisdictional dispute without economic action and if you do not, we are going to appoint an arbitrator to settle it for you and it is going to be binding on you.

And if he explained, he wanted to get the same incentive into the Act and that is why he proposed Section 10 (k), which was adopted, almost completely the way he proposed it.

There is only one deletion and that is that Senator Morse proposed that if the two unions, excuse me, if the parties in the language of the statute, could not agree upon a settlement of the dispute, the board could hear the dispute itself or the board could appoint an arbitrator to hear it.

The provision allowing the board to appoint an arbitrator was deleted.

It was deleted without comment in the legislative, in the conference, but we submit that we had a very clear statement from Senator Morse as to what the reason for Section 10 (k) was being put into the Act or being proposed.

Other legislators, Senator Murray, for example, also echoed his hopes, that this provision, Section 10 (k) would encourage unions to set up machinery, to settle jurisdictional disputes themselves before the governmental action was necessary.

In affect then, Congress established the scheme for the settlement of jurisdictional disputes which resulted in work stoppages, which we think is clearly discerned from the statute and the legislative history.

It has got four steps.

First, there is a jurisdictional dispute between two unions which results in a work stoppage.

Congress said that work stoppage is going to be halted by a 10 (l) injunction.

Second step; Congress proposed 10 (k).

It said in Section 10 (k), we are going to have an opportunity for the two unions to get together and resolve their dispute, the abstention provision.

Step three; if the two unions or labor groups cannot resolve their dispute themselves, then the NLRB is going to have to make a binding determination of that dispute, in a 10 (k) hearing.

Step Number four; out of the voluntary mechanism or out of the 10 (k) hearing before the board, one union will prevail.

One union will go back and deal with the employer, will negotiate.

Each will be able to use their own economic weapons at that point. Congress was not imposing substantive terms on either the unions or the employers.

Congress recognizes that what it wanted to do was to protect the neutral employer, the employer caught in the middle.

The helpless victim, between the two warring unions.

The legislative history beginning even with the house statements and the house report, all show the Congress was concerned about the neutral employer, the innocent victim of the warring unions, the helpless victim caught between these two unions and as Justice Black said in CBS, the employer who is caught between the devil and the deep blue, that was the interest that Congress was trying to protect.

That was its policy.

Of course, the employers may have a preference, but Congress did not grant in Section 10 (k) or 8 (b) (4), protection of an employer's economic interest.

Congress reserved that issue to the normal processes of collective bargaining and we submit that what the board is trying to do here is establish its own policy, as to the relative economic strengths between an employer and a union, dealing over work assignment controversy, but we submit that the board does not have that right when the Congress has laid down that policy.

Now --

Justice Byron R. White: The board (Inaudible) employer though that even if it settled the 10 (k), even if the board’s power is upheld in this case?

Mr. Donald J. Capuano: That is precisely one of our main arguments in support of our position that the board is not turning out its duty, simply for that reason that the board cannot force the employer to do anything and this employer can ignore the voluntary procedure that the two unions have entered into.

They can agree to the Joint Board or some other procedure.

The employer -- he does --

Justice Byron R. White: It would not be a problem here as one of the unions would obey the joint board?

Mr. Donald J. Capuano: Mr. Justice White, the policy or the rule that the board is following here is discouraging unions.

It is discouraging the employers from joining into these groups.

Justice Byron R. White: Is not that correct that if the Tile Setters would disclaim the work, the whole proceeding would be aborted?

Mr. Donald J. Capuano: Under the board Safeway doctrine, yes sir.

That is correct.

Justice Byron R. White: Well, then why does not the Tile Setters do it?

Mr. Donald J. Capuano: Because of the policy that the NLRB is following that we are trying to get reversed in this case.

Justice Byron R. White: I know, but the Tile Setters, what they are saying is that we did have a voluntary way of settling our dispute through the Joint Board, but we just would not comply.

Mr. Donald J. Capuano: They said that they would not comply because the employer is not bound and that we know that if the employer is not bound the NLRB --

Justice Byron R. White: I do not care for whatever reason that is, that the employers never bound, whether there is a hearing or not?

Mr. Donald J. Capuano: Well --

Justice Byron R. White: And that so, I do not know what kind of an argument that is?

Mr. Donald J. Capuano: The argument runs like this.

We will comply because the employer is not bound.

We know that if the employer is not bound to the voluntary adjustment, the NLRB will hold the 10 (k) hearing.

Justice Byron R. White: Then the --

Mr. Donald J. Capuano: So we --

Justice Byron R. White: The employers still would not be bound?

Mr. Donald J. Capuano: No, but we have a second bite at the apple.

Justice Byron R. White: (Voice Overlap)Nevertheless, the union is not complying with the Joint Board determination?

Mr. Donald J. Capuano: Absolutely!

Justice Byron R. White: And they -- if it did and disclaimed, there would be no 8 (b) (4) (D) and no 10 (k) proceeding?

Mr. Donald J. Capuano: That is correct.

Justice Byron R. White: Now, so what we really have here is a situation, where not only the employer has not agreed to the settlement, but one of the unions has done.

Mr. Donald J. Capuano: Only as a result --

Justice Byron R. White: Well, (Voice Overlap) if one of the unions, that the Tile Setters really would comply with the Joint Board determination --

Mr. Donald J. Capuano: Yes sir.

Justice Byron R. White: There would be no dispute here.

Mr. Donald J. Capuano: That is right.

Justice Byron R. White: The fact is, that they will not disclaim, they are still claiming the work and so they are -- there just is not any voluntary adjustment yet, even between the unions.

Mr. Donald J. Capuano: No sir.

We believe there was the voluntary adjustment, when they agreed to the Joint Board and the decision was issued.

They are only refusing to comply because they know they can get -- (Voice Overlap)

Justice Byron R. White: But they are refusing to comply, and they are still claiming the work?

Mr. Donald J. Capuano: Yes sir, but I think it goes somewhat in the circle.

If the board was not following the policy or rule which is an issue here, there would simply be no reason for the Tile Setters not to comply because they would know that the NLRB --

Justice Byron R. White: There would, oh yes, there would still be.

They can still refuse to comply and they could still strike, they could still get (Voice Overlap)M

Mr. Donald J. Capuano: Not if they lost as they did before the Joint Board.

They could not, that is the point I am making.

Justice Byron R. White: Why could not they?

Mr. Donald J. Capuano: Because the NLRB would then seek an injunction against them, presuming a charge is filed against them.

There would, once they know that they cannot get a second bite at the apple before the NLRB.

Justice Byron R. White: What would be their unfair labor practice?

Mr. Donald J. Capuano: Striking to force a change in the assignment of work contrary to a board order.

Justice Byron R. White: Well, it would not be contrary to a board order?

Mr. Donald J. Capuano: Yes, because the board order was the Plasters.

Now, with the employer --

Justice Byron R. White: I do not mean -- I mean the Joint Board, let us assume the Joint Board gave it to the Plasters, right?

Mr. Donald J. Capuano: Yes sir.

Justice Byron R. White: Now, the Tile Setters did not comply.

Mr. Donald J. Capuano: That is correct.

Justice Byron R. White: Now, if the board gives it to the Plasters --

Mr. Donald J. Capuano: The NLRB.

Justice Byron R. White: The NLRB?

Mr. Donald J. Capuano: Yes.

Justice Byron R. White: Gives it to the Plasters, then the Tile Setters are bound?

Mr. Donald J. Capuano: Yes, they are bound in the sense that if they strike.

Justice Byron R. White: They would be on an 8 (b) (4) --

Mr. Donald J. Capuano: Right!

Justice Byron R. White: 8 (b) (4) (D).

Mr. Donald J. Capuano: Yes sir, that is correct.

And the only reason they are refusing to be bound by this Joint Board is that they know they can get a second bite at the apple.

The employer refuses to be bound by the voluntary mechanism because he knows that he can wait to see how the voluntary adjustment will work out.

If his preference is not sustained there, then he knows he can demand a 10 (k) hearing before the NLRB and if his preferences is not sustained there, he can completely ignore both proceedings and goes his own way.

Justice Byron R. White: Really, what you are saying is that of course for this proviso to be applicable, you have to assume there is been a settlement or a message for settlement.

Mr. Donald J. Capuano: You mean the abstention provision?

Justice Byron R. White: Yes.

Mr. Donald J. Capuano: Now, the abstention provision comes into a fact if (Voice Overlap)

Justice Byron R. White: Well, the board with satisfactory evidence that they have adjusted or agreed upon method for a voluntary adjustment to the dispute.

Mr. Donald J. Capuano: That is right.

Then the board will hold the 10 (k).

The Board will dismiss the charge when there has been compliance with the adjustment, but as Judge Leventhal pointed out, the stability is maintained because during this period a 10 (l) injunction is in effect, which is obtained by the board as soon as the 8 (b) (4) (D) charge is filed.

So the whole scheme of the statute --

Justice Byron R. White: But you are saying what the board must do is to recognize the fact that there has been a voluntary adjustment here in a sense that if the Joint Board has determined the dispute.

Mr. Donald J. Capuano: Yes sir.

That is correct.

Justice Byron R. White: And that the board must recognize that one union is bound by it.

I mean both unions are bound by it?

Mr. Donald J. Capuano: Yes.

Yes, Mr. Justice White.

That is correct.

Justice William J. Brennan: Well, I gather they are not bound (Inaudible)

Mr. Donald J. Capuano: Well, both unions are affiliates to the building, infrastructure trades --

Justice William J. Brennan: Alright, but what is important?

Well, I have been caught on the standard, I gather your argument is agreed upon methods of the voluntary adjustment.

Certainly they have agreed upon a method.

Mr. Donald J. Capuano: That is correct.

Justice William J. Brennan: And the disputes have been submitted to the Joint Board and just decide it --

Mr. Donald J. Capuano: Yes.

Justice William J. Brennan: -- and the looser refused to be bound.

Is that what that means that --

Mr. Donald J. Capuano: He refuses --

Justice William J. Brennan: Is that satisfying?

Mr. Donald J. Capuano: He refuses to --

Justice William J. Brennan: But what are the reason he does?

Is this provision satisfied merely because they have agreed upon a method?

Mr. Donald J. Capuano: Yes sir, it is.

The board in many cases has held that the Joint Board is a method for the settling of disputes.

Chief Justice Warren E. Burger: Then it is very effective then is it not (Voice Overlap).

Mr. Donald J. Capuano: It would be affective but for the rule of the board in this case Mr. Chief Justice because then there would simply be no reason for a union not to comply because it knew it was not going to get a second bite at the apple with the NLRB and with the record of the NLRB, we submit that the losing union before the voluntary procedure, many times is encouraged to seek the second hearing, before the NLRB where perhaps the employer's for reference would be held valid.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Capuano.

Mr. Gold.

Argument of Laurence Gold

Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.

In light of the excellence of the opinion below which sets out all the affirmative points upon the --

Justice William J. Brennan: It is always easy to say that as it was.[Laughter]

Mr. Laurence Gold: Yes.

Well, there are times that although it is --

Justice William J. Brennan: You thought you would not feel better --

Mr. Laurence Gold: Well, there are times of Mr. Justice Brennan, when an advocate is upset about the way he has won below.

He is been brought up here and he has the feeling that due to certain deficiencies in the opinion below, he wants to gut it, but I want to make it most emphatically clear that we are not in that position at this time.

We make a happy exception and we do most heavily rely on the opinion below which shows that all of the accepted indicia of ascertaining Congressional intent, the language and structure of the particular provision, the overall structure of the Act, the legislative history and this Court’s precedents all support our position.

Justice William J. Brennan: All which overrides (Inaudible)

Mr. Laurence Gold: We do believe so, 13 years --

Justice William J. Brennan: That is the fact that --

Mr. Laurence Gold: Well, it is been 10 years.

Last time, it took 13.

Last time, it was unanimous opinion of this Court which overrules was 13 years of administrative action which the board claimed, had amalgamated each reading.

Justice Byron R. White: What case was that?

Mr. Laurence Gold: CBS sir.

Justice Byron R. White: What is your view of why this abstention provision is triggered here where a union has apparently agreed upon a method for settlement, but then repudiates it is entire undertaking and still insists on having the work?

Mr. Laurence Gold: Well, what we --

Justice Byron R. White: Why then, is this abstention provision triggered when not even one of the unions or once -- one of the unions has been agreed on the affect?

Mr. Laurence Gold: As we read the statute Mr. Justice White and the language is on page 3 of the board's brief, I guess that is what we have all been referring to.

Justice Byron R. White: Yes.

Mr. Laurence Gold: The board is instructed to the differ when it receives satisfactory evidence that they, the parties have adjusted or agreed upon methods for voluntary adjustment of the dispute.

The statute does not really say that they are has to be adjustment which leads to a disclaimer.

That is one situation, and that is the situation, which the board recognized --

Justice Byron R. White: I agree but apparently one of the unions is not only repudiated this agreement to abide by the adjustment but they had repudiated the method of adjustment?

Mr. Laurence Gold: Well, if no, they have not repudiated the method.

They have said that in life, they have the work in their hands and they say, they are not going to disclaim and leave it alone if this --

Justice Byron R. White: But we were still going to claim the work regardless of the method that we previously agreed on, which seems to me a repudiation of the entire procedure?

Mr. Laurence Gold: Well, I do not think so because it maybe repudiation but it is one that is correctable in light of -- we believe in light of Section 301 which applies to agreements between the unions.

But what you have this --

Justice William J. Brennan: You mean the Joint Board determination pursuant to the agreement to submit to the Joint Board would be enforceable (Inaudible)

Mr. Laurence Gold: Yes, I believe, so it is an arbitrary award.

There is a Seventh Circuit decision involving a textile work.

Justice William J. Brennan: Then is that (Inaudible) an agreement?

Mr. Laurence Gold: Yes, there are.

There are.

Justice Byron R. White: An agreement between two unions?

Mr. Laurence Gold: Yes, there are, there are decisions holding that agreements between unions to submit this type of dispute to arbitration or an enforceable --

Justice Byron R. White: Why is not that kind of an issue then -- why is not that kind of an issue I thought for one, for the court enforcement?

I mean that, that the --

Mr. Laurence Gold: Well there are --

Justice Byron R. White: I mean the end result of such an enforcement proceeding to be a disclaimer?

Mr. Laurence Gold: Well, it would be but then you have problems of -- well, it would be, it would be a judicially required disclaimer, but what you have Is as long as the board continues on its policy of not recognizing the award, you have a practical point.

The unions which prevail before the Joint Board is barred from -- is barred unless -- is barred from using economic force.

Justice William J. Brennan: Tell me, if the union has prevailed may result to be awarded.

It is the only part of the agreement which result to the award.

Mr. Laurence Gold: Yes.

I think so; the party that prevailed would be --

Justice William J. Brennan: In this instance, only the Plasters --

Mr. Laurence Gold: That is correct.

They would be the only one with an interest.

Justice William J. Brennan: Then the employer could.

Mr. Laurence Gold: No.

Because he would not be a party.

Now, there are, I mean there are situations in which employers are a part of a mechanism and as Judge Leventhal pointed out in his decision where that happens and everybody is in and the whole matter is resolved but the statute in 10 (k) is only designed to regulate the use of economic force in situations where there has been a dispute which is ripe being to a jurisdictional strike.

At that point under Section 10 (l), the board comes along and gets some injunction.

It then holds a 10 (k) hearing.

At the 10 (k) hearing, it determines which union is to be allowed to use economic force, that is what the statute does.

It is throwing out the inter union dispute in that as Mr. Capuano put it, stating which party will come back, will be allowed to use economic force, that is the only affect and that is why we think the government’s argument that 10 (k) is meant to settle jurisdictional strike is wrong.

It is not; that is the exactly the argument that was made in CBS.

That because the employer is not affected by the 10 (k) award, they have to give the work to the union that the employer wants to give it to, but that is not the point of the statute.

This part of the statute as all the other parts are consistent with what this Court has emphasized from Insurance Agents through a American Ship and most recently in HK Port, that way you have an economic issue, the parties would have worked that out.

And therefore, Congress in line with the whole scheme with 8 (b) (4) (D) as you point out Mr. Justice Brennan in National Woodwork, only protects employers in the position of neutral.

We are not arguing here that the employer does not have a preference, as a matter of fact; this is not a fact question.

We recognize that employers may have a preference, as a matter of fact, but the only thing that has been protected is their interest in being free of the conflicting claims of disputing unions.

There on --

Justice Potter Stewart: That of course is the question before us, is it not?

Mr. Laurence Gold: Well, we believe as I said, Mr. Capuano has tried to spell out our affirmative arguments and as I say, we think they have also been spelled out fully by the Court below.

I am saying that we believe that everyone of these indicia points out, points to the fact that employers in the positions of neutrals that the interest in neutrality or the interest of being free of competing claims, is the only one protected and as I say, we rely on the language of Section 10 (k) which would be nonsensical since it talks about compliance with the award if parties included employer.

It is shown by the whole structure of 10 (k) which only deals with the use of economic force.

It is shown by the whole structure of the Act which says that except when an employer is in the possession of a neutral economic matters between the -- and union had to be settled by the parties through economic force.

And it is shown by the legislative history, which is indicated at page 16 of our brief where every comment made was indicated that Congress was focusing on the situation of an employer who is a helpless victim, who is caught between unions and there is not a single indication, and we believe you would need the strongest indications in light of the whole structure of the Act.

There is not a single indication, that this was a provision to pull the economic chestnuts out of the fire of an employer who had a particular preference.

Justice William J. Brennan: Mr. Gold, I gather your whole argument really comes down before (Inaudible) that in this case, there was a method --

Mr. Laurence Gold: Yes sir.

Justice William J. Brennan: -- and that is if there exists an agreed upon method that in this case?

Mr. Laurence Gold: Yes.

Justice William J. Brennan: That is whether or not the method is in fact employed, both setup should employed it all?

Mr. Laurence Gold: No, I think that the parties have to --

Justice William J. Brennan: They at least have to employ, is that it?

Mr. Laurence Gold: Yes.

You have to get satisfactory evidence that they have adjusted or agreed upon methods.

Justice William J. Brennan: As had agreed upon method, but it must be at least employed by this?

Mr. Laurence Gold: Yes.

I think somebody would have to make a claim in the process of getting a decision.

Justice William J. Brennan: Yes, but do you stop should, that is as far as (Inaudible).

That is resorted to the Joint Board decide it and the losing unions repudiates the agreement and you say that is immaterial, nevertheless, as far as the statute is concerned, the board has no jurisdiction?

Mr. Laurence Gold: Right, because at that point, there is a method of assuring the statute provides method.

Again as Judge Leventhal points out that the statute provides a method of assuring that the employer will not be caught between those two unions.

The losing union can be subjected to the judicial, can be brought to a judicial tribunal, to correct it is -- it is the error of its way.

Justice Byron R. White: The board's answer is that there is another party, but the employer, but if the board, even if the employer is a party, dismisses the proceeding, when there is a disclaimer, I would think you would say, or what you do, I take it that when there is a binding method agreed upon, the board should recognize that it is binding on the parties, and it should be therefore, given to a disclaimer.

Mr. Laurence Gold: Right.

Our argument is very simply, is that when the board --

Justice Byron R. White: I mean even if the employer is a party?

Mr. Laurence Gold: Right.

We were saying that where the board under its so called Safeway doctrine dismisses on a disclaimer, it is giving effect to the language that the parties have adjusted and we are saying what they are failing to do here --

Justice William J. Brennan: And then you wind up by saying that it is not to the board that would assist order to bring the repudiating union in line.

It is either as some other method that is --

Mr. Laurence Gold: Correct!

Justice William J. Brennan: Under 301 or I take it a state proceeding?

Mr. Laurence Gold: Well, I would think it would be 301, but I would point out that the board plays as a rule and they admitted in footnote 21, what happens is, if you have a repudiating union, that union cannot utilize economic force because the board treats its order dismissing the proceeding or quashing the hearing as a board order and treats the loosing union as if it is lost before it, and if that losing union ever tries to use economic force, it will get a 10 (l) injunction against it.

Justice William J. Brennan: It will have to be a new proceeding?

Mr. Laurence Gold: No.

They would go and that would be in 8 (b) (4) (D) charge against that union, the losing union.

Justice William J. Brennan: Arbitrary?

Mr. Laurence Gold: Yes.

Justice Byron R. White: But why?

If that is not there, it could not be strike in contrary to an order, it is just a dismissal on the grounds that there is no longer the basis for a 10 (k) proceeding?

Mr. Laurence Gold: Well, as I say, the board takes the position because I think and I think it has to because the whole purpose of the statute would be undermined that the dismissal is the equivalent of an order and that somebody who -- a union which strikes after a dismissal on the ground that there has been a settlement, is striking contrary to a board order because the whole purpose as Senator Morse explained as we note in the introductory section of our brief, the whole problem here have prior to 10 (k) was it they were meant union method of settlement which Congress wanted to encourage but which did not work where the -- where a union had a great deal to lose.

They would defy the tribunal that was before 301 as well, since it was in 1947.

Justice William J. Brennan: Had there ever been a 301 proceeding on board's (Inaudible)?

Mr. Laurence Gold: There are some 301 proceedings pending as I, as --

Justice William J. Brennan: Everyone and anyone come (Inaudible)

Mr. Laurence Gold: I am not aware that any has come to decision.

I would point out as I indicated that on the -- in the brief in our position, the case of textile work, United Textile Worker versus Textile Union of America.

258 F. 2d 743 is cited and that is the case holding that an arbitration to decide a dispute between two union is enforceable under 301.

But if I started to, and just the conclude the thought I was on, the whole theory of the statute would be undermined if an order quashing a hearing was not an order for the purposes of 8 (b) (4) (D) because as I started to say, you had unions which would not comply because it hurt too much.

Then we would try to use economic force and the whole purpose of 10 (k) is to put a final spur into a -- is to give an impetus to compliance by taking away the right of a losing union, to use economic force and once that is taken away, that union is in –

Justice Byron R. White: But when there is a disclaimer and the Safeway doctrine is applicable and the proceeding is dismissed, is that dismissal order the -- would the dismissal order be a basis for a charge?

Mr. Laurence Gold: Yes, Your Honor.

Justice Byron R. White: If the Union repudiated the disclaimer?

Mr. Laurence Gold: Yes, Your Honor.

That is the law cited on footnote 21 of the board's brief and I just -- I would just note again in conclusion that the striking thing about the the board's presentation is that it makes no affirmative arguments, there are -- it does not point to a single basis in the statute.

Every argument is based on the notion that the employer has an economic interest and our answer to that is, that was not a protected interest that as so for as Congress was concerned.

Chief Justice Warren E. Burger: Thank you Mr. Gold.

You have four minutes left for rebuttal Mr. Come.

Rebuttal of Norton J. Come

Mr. Norton J. Come: I think that when all that is said on the other side, we come back to what in our view is really the simple question here, namely whether or not in view of the vital interest that the employer has in the resolution of a jurisdictional dispute plus the fact that Congress was interested in having these disputes settled in the public interest.

It is reasonable to assume that Congress, although, it was perfectly willing to encourage the unions to try to adjust these matters short of economic pressure, intended that when you got down to the nitty-gritty of being unable to resolve the matter and having pulled in the employer through economic pressure, Congress could have intended that there would be a binding settlement that would exclude the interest of the employer.

After all, certainly it seems rational to believe that if there is going to be a final and binding resolution, it is going to be --

Justice Byron R. White: (Inaudible) is not binding on employer?

Mr. Norton J. Come: Well, it is binding in all -- for all practical purposes because the employer is not at all going to a stand up under the economic pressure of a picket line or a strike.

There is a weighty compulsion on him to comply with the award.

Justice William J. Brennan: Do you agree Mr. Come, was the Joint Board award since it goes vested on principle on the filling?

Mr. Norton J. Come: I think that, that is an open question, Your Honor.

I think that there is one case that is cited where they tried to enforce it against the employer and the court refuse to do it on the ground that since he was not a party, it could not be enforce against him.

There are a couple of cases in the lower courts that have enforced it against the two unions, but what does that mean?

That still does not compel the employer to reassign the work or as under our setup, he would be subjected to economic pressure or a –-

Justice William J. Brennan: What I am suggesting is that the court (Inaudible)

Mr. Norton J. Come: Well –

Justice William J. Brennan: It does say that the (Inaudible).

Mr. Norton J. Come: No, that is correct Your Honor, but –

Justice William J. Brennan: As intended but they also thought of remedies, I suppose?

Mr. Norton J. Come: Well, I think that is the basic problem and I think that you do not get an answer to this from the legislative history because as is often the case, the problem that comes up is one that was not directly focused on.

So you have to bring up there we believe the realities of the situation and the big reality here is the employer's economic increase in the matter and certainly it is a phone-book rule of law, if you do not make, I do not want to use the word binding because this is not binding in the technical sense, but you do not make a substantial decision, that it is going to affect the interest of a party at least in the way that the employer's interest is affected here by being subjected to the picket line.

How did at least letting him be heard.

Furthermore, since this is to be settled, I will finish it in a moment Your Honor, in the public interest, you want a proceeding that is going to ensure that it will bring out all factors, including factors of economy and efficiency of operators and when the employer (Voice Overlap)

Justice William J. Brennan: I could not agree with you more, but the Congress legislated otherwise, I suppose that the Congress could put it in order?

Mr. Norton J. Come: That is correct Your Honor but as I say one of the tools that we believe has to be brought to bear here is the economic realities of the situation which we submit Congress could not have been blind to.

Thank you.

Justice Potter Stewart: So your basic argument, at least at the superficial level of a semantic statutory construction is simply that party, the parties to such dispute includes or may include the employer?

Mr. Norton J. Come: That is correct.

Justice Potter Stewart: And the Congress did legislate, just the way you said it?

Mr. Norton J. Come: That is correct and that is even if you interpret dispute as the court below interpreted, it is not central to our argument that dispute has to be the dispute over the jurisdictional strike.

We think that -- because even if it is only the dispute over the work assignment, the employer is a party to that.

At least that the point where he is not willing to go along which he certainly was not willing to do in this case.

Chief Justice Warren E. Burger: Thank you Mr. Come.

Thank you gentlemen.

The case is submitted.

Featured:

Labor Board v. Radio Engineers - Oral Argument, Part 2

Tue, 25 Sep 2012 22:37:26 +0000

Case:

Labor Board v. Radio Engineers

Media File:

69_19601114-argument-2

Related Transcript:

69_19601114-argument-2

Transcript:

Argument of Dominick L. Manoli

Chief Justice Earl Warren: National Labor Relations Board, Petitioner versus Radio and Television Broadcast Engineers’ Union, Local 1212, et cetera.

Mr. Manoli.

You may continue your argument.

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

In my opening remarks last Thursday, I stated that the question presented in this case was whether Section 10 (k) of the Labor Act which requires the Board whenever there is a charge filed alleging a violation of Section 8 (b) (4) (D) which requires the Board to hear and determine the dispute out of which those charges have arisen, whether Section 10 (k) requires the Board in the absence of a preexisting board order or certification the meaning of Section 8 (b) (4) (D) governed the assignment of a dispute work assignment, whether the Board is required to arbitrate the dispute between a rival unions and on the basis of such matters as is tradition, practice and the like to affirmatively award the work of the members of one union or another.

When the Court arose last Thursday, it reached the part in the statement of facts where I was describing what the Board had done in the Section 10 (k) proceedings in this case.

The Board found that the work stoppage by the electrical workers over the assignment of the remote lighting work there was reasonable cause to believe that that work stoppage was in violation of Section 8 (b) (4) (D).

The Board further found that the assignment of this work to the stage hands and instead of electricians was not in derogation of a Board certificate or a Board order within the meaning of Section 8 (b) (4) (D) and that therefore, the electricians were not entitled of the work.

The electricians' unions gave notice as required --

Justice John M. Harlan: Supposing this has been a straight unfair labor charge.

Mr. Dominick L. Manoli: Yes, sir.

Justice John M. Harlan: What is the difference between 10 (k) proceeding and the function of the Board as you see it, a 10 (k) proceeding (Inaudible) under ordinary unfair labor charge (Inaudible) this transaction.

Mr. Dominick L. Manoli: Yes.

The Court could make similar findings if there had been just simply an 8 (b) (4) (D) charge and there had been no statutory procedure for 10 (k).

And of course, this is led to the argument that the Board as it -- has interpreted Section 10 (k), has to form a sort of a useless task, a task which it could just as readily perform in the unfair labor practice proceedings.

Now, I think this is the weighty argument against the Board's position in this case but nevertheless, however, I don't think it is enough to tip the scales against the Board and I will come to that later on in the course of my argument.

Now, as I say, the union gave notice that it would not comply with the Board's determination of this work assignment and accordingly in conformity with the statute, the general counsel issued an unfair labor practice complaint charging the union with a violation of Section 8 (b) (4) (D).

And in the unfair labor practice proceedings, the Board took note of its earlier Section 10 (k) determination that the union -- that the electrical workers were not entitled to this work and it found that the work stoppage was in violation of Section 8 (b) (4) (D) and accordingly, it issued a cease and desist order.

The court below refused to enforce the order and the thrust of its decision is that Section 10 (k) requires the Board where there is no preexisting Board order or Court certification or collective bargaining contract covering the assignment of the work, 10 (k) requires the Board to arbitrate the dispute and on the basis of tradition practice in the like to affirmatively award the work of the one union or the other.

And since the Board had not done this in the Section 10 (k) proceedings, the Court concluded that the conditions prerequisite for the issues of the unfair labor practice order had not been satisfied and that therefore the order was not entitled to be enforced.

Now, before I turn to the statutory considerations which underlie this controversy, I think it would be useful to view the question presented in this case in its historical setting.

Section 10 (k) and 8 (b) (4) (D) of the statute were part of the 1947 Taft-Hartley Amendment to the Act.

The first cases to reach the Board under these provisions for adjudication were decided by the Board in 1949 and in 1950.

And from that time on, a majority of the Board has consistently held that an employer is free under the statute to make assignments of work that the Board would not overrule such assignments of work unless they are in derogation of a Board order or Board certification in the meaning of Section 8 (b) (4) (D), and as I shall explain later, of a collective bargaining contract.

And that absent those factors, absent such derogation that a union is not free to seek to override by virtues -- by work stoppages or by strives to seek to override the employer's assignment of the work.

Now, on at least two occasions, since the Board first charted its course in this area, on at least two occasions there have been proposed in Congress or recommended amendatory legislation which would have expressly overruled the Board's interpretation of Section 10 (k).

In 1949, the Senate passed the Thomas Bill which was part of the so-called 1949 Taft-Hartley Act, an aborted bill I might say.

This Thomas Bill would have required the Board or an arbitrator appointed by the Board to hear and determine the dispute and to arbitrate the dispute on the basis have stated within in the amendment itself on the basis of stated criteria including past practice.

The Senate passed that amendment but it died in committee in the house.

Again, in 1943, in hearings before the Senate Labor Committee, the view was stated that the Board had either misinterpreted Section 10 (k) or that if the Board had correctly interpreted Section 10 (k) that Section 10 (k) was inadequate to deal with this -- with the Commerce Bill and that therefore, there should be a change.

Again, nothing came of those suggestions.

And in 1959 when the Congress as the Court well knows, when the Congress made extensive revisions to the Taft-Hartley Act, including revisions of Section 8 (b) (4), of which Section 8 (b) (4) (D) is a part, Congress made no changes in either the procedure or substantive provisions of this statute relating to jurisdictional disputes --

Justice William J. Brennan: And 59 was only the affirmative proposal od such changes (Inaudible)

Mr. Dominick L. Manoli: Was anyone.

Justice William J. Brennan: Any affirmative proposal which the 10 (k) --

Mr. Dominick L. Manoli: No, there was not.

Justice William J. Brennan: It adjusted to 1949 that you say and --

Mr. Dominick L. Manoli: In 1949, there was an amendment, the so-called Thomas Amendment.

Justice William J. Brennan: And then you said there was a later one --

Mr. Dominick L. Manoli: Which was passed --

Justice William J. Brennan: Yes.

Mr. Dominick L. Manoli: -- by the Senate but died in committee.

In 1953 there were hearings before the Senate Labor Committee and among the (Inaudible) was Professor Archibald Cox who said that the Board's reading of 10 (k) was either wrong or if it was right, the statute was inadequate as it stood and should be amended and again, nothing came from that proposal in 19 -- of that recommendations of the hearing in 1953.

Justice William J. Brennan: It was no -- no such affirmative proposal in 1959.

Mr. Dominick L. Manoli: No, there was not.

There was not.

But in 1959 however, in 1959 as I say Congress did engage in extensive revisions of statute excluding 8 (b) (4), which 8 (b) (4) (D) a part and at that time, at that time, the Board and two Courts of Appeals were at odds over the interpretation of Section 10 (k) and the Board had formally stated that it would not abandon its position with respect to its interpretation of Section 10 (k).

Justice Potter Stewart: As the Board's course from the very beginning had been entirely clear, Mr. Manoli it suggested by the respondent that for the first year or two, imprint in 1949 this matter was being considered in Congress.

The Board's position, restricted position was entirely clear and then actually, they -- they have -- the Board have set out a concept of its function under Section 10 (k) of rather similar to the one now tended for by the respondent.

Mr. Dominick L. Manoli: The argument Your Honor is largely founded upon a Board rule which is cited at towards the very end I think in the next and the last page of our brief and apparently, this rule had been sort of a sleeping for many years over at the Board until some smart lawyer picked it up in connection with the case that we had in the Seventh Circuit a case like this one here.

Now, I think we could debate for some time here whether or not the Board's rule on which so much reliance had been placed with a position contrary to the Board's interpretation of Section 10 (k), I think we could debate for some time with that rule as consistent with what the Board has said in its adjudicated in its formal adjudications or where there are some inconsistencies.

But even if there is certain some ambiguity, I think, because the Board itself in 1958 didn't modify the rule to take care of any ambiguity that might be in that rule, but assuming for the sake of argument, the sake of argument, this rule seems to point in the direction of the interpretation as the respondent's urge, I think it should be born in mind that this rule was adopted in 1949, in 1947 rather before the Board -- the administrator -- administrator made before the Board had had the benefit of what Mr. Justice Frankfurter has characterized elucidating litigation and that from 1949 on when the Board issued its initial decisions in this area the Board's position has been fairly consistent or even the majority have been -- had fairly and consistently held to the position that I indicated earlier.

Justice Potter Stewart: The Moore Dry Dock case was the first one and that was --

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

Now that it was -- the Board said that this certain union was not entitled to work but the (Inaudible) was stating that the other union was entitled to work.

The Board got away from that within the next month.

Then the next sections of decisions followed almost by a month the Moore Dry Dock case.

Justice John M. Harlan: But Juno or whatever was the --

Mr. Dominick L. Manoli: The Juno, that's correct, that's correct.

I think it's also interesting to know that in connection with this rule of which so much has been made is that the members of the Board who adopted that rule in 1947 were the same members who decided the two cases in 1949 where the Board as I said announced its position to which it had consistently appeared.

Now, against this historical background that I've just indicated the Board's consistent position here it seems to us and the efforts that have been made in Congress to overrule this interpretation or the recommendations that have been made in Congress to overrule this interpretation, it seems to us that against that background, the Board's into -- long standing interpretation should not be overruled except for the most cogent reasons.

And I venture to say that not only others cogent reasons such reasons will act but then on balance the support which a Board's interpretation finds in the internal structure of the statute add ways to the considerations which militate against it and there are not doubts -- there is no doubt there are considerations that do militate against the Board's position but I say on balance we think that the support which we find in the internal structure of the statute for the Board's interpretation are the ways of those considerations.

Now Section 10 (k) looked at it in isolation and read literally, can be interpreted to mean that something more was required of the Board, something more was required of the Board that whether it was no control in certification of order then to simply uphold as it now does in affect and to simply uphold the employer's assignment and indeed I might say that there are intimations in the legislative history.

Now you use the word intimations advisedly because I think when we come to look at the legislative history as I find to do, we will find that there is no real -- we get no real help.

We get no real help in the legislative history for solving this problem, but as I say there were intimations and there are intimations in the legislative history that at least in the minds of some legislators it was thought that the Board would do something more in Section 10 (k) than to merely uphold the employer's assignment.

Justice Felix Frankfurter: You're going to layout the details whereby in (Inaudible) below that the intent of Congress was clear rather.

Mr. Dominick L. Manoli: I am I will challenge.

Justice Felix Frankfurter: It will at least give to me a clear word.

Mr. Dominick L. Manoli: I will challenge that Your Honor.

I don't think it's anywhere near that clarity.

I stick to my position and we don't -- You don't really get any -- any real help from the legislative history in solving that problem.

Now, the Section 10 (k) can be read literally and if its read in isolation to require that the Board knew something more than uphold the -- the employer's assignment, but the language of Section 10 (k) itself does not require that it does not commend, does not compel that the interpretation because while Section 10 (k) speaks of a Board determination, it does not tell us what the nature of that determination has to be.

I believe that the answer to our problem has to be found not only in the language of Section 10 (k), but from the interplay of various related procedure -- of various related statutory provisions, namely, Section 10 (k) and 8 (b) 4 (D) on the one hand, Section 8 (a) 3 and 8 (b) 2 of the statue which forbid discrimination in employment which encourages or discourages union membership and finally Section 303 of the Labor Management Relations Act which gives to a person who has been injured by one of this jurisdictional disputes the right to seek damages for whatever injury has been caused to him.

Justice Felix Frankfurter: Mr. Manoli, (Inaudible) what you said a minute ago of the word determined, these controversies arise whether in fact it provides or whatever you call it be on this clause, do controversies arise that it would be a less clause would satisfy?

From 8 --

Mr. Dominick L. Manoli: 8 (b) 4 (D)?

Yes the Board has had such cases where it has said that certain disputes where it fell within the unit previously determined by the Board.

Justice Felix Frankfurter: Yes.

Well that that's my impression that had been such.

Mr. Dominick L. Manoli: Yes sir I have been.

Yes sir.

Justice Felix Frankfurter: So that determined may be absorbed by that kind of issue.

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

That's right.

Justice Charles E. Whittaker: (Inaudible) that the statute 10 (k) merely says that the Board shall make a determination without saying what it should determine?

Mr. Dominick L. Manoli: It says that it shall determine the dispute underlying the unfair la -- or they give rise to the unfair labor practice.

Now, the argument here is, is whether the Board in the situation as I say which is not controlled by preexisting Board order or Board certification in Section 8 (b) (4) (D) was the Board had determined the dispute when it says that the union in that situation is not entirely to work and it is not entitled to -- to upset or attempt to upset the employer's assignment of the work.

That as we think is a determination.

Now, Section 10 (k) doesn't say that the Board shall make a determination based upon tradition or custom or what have you.

Justice Charles E. Whittaker: No at least it's free to determine the dispute?

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

That's right.

It does -- it leaves -- it leaves it free to make the kind of determination that is consistent with the rest of it do -- the rest of the statute they say you can't look to Section 10 (k) alone but you must look to other parts of the statute in order to see what the Board has required to do in Section 10 (k).

Justice Charles E. Whittaker: And one more question if I may?

Mr. Dominick L. Manoli: Yes sir.

Justice Charles E. Whittaker: What is not to dispute in this case between CVS and the electrical -- the electricians, the latter claiming this word.

Mr. Dominick L. Manoli: Right.

Justice Charles E. Whittaker: Now did not your order the Board's order settled, determined to use language of the statute, determined that dispute?

Mr. Dominick L. Manoli: It determined that dispute by saying that the electrical workers were not entitled to the work.

Justice Charles E. Whittaker: Was there anything left in dispute after that and in that order in other words meet even the criteria of the Court of Appeals?

Mr. Dominick L. Manoli: Well the Court of Appeal says it does --

Justice Charles E. Whittaker: I know they said that but --

Mr. Dominick L. Manoli: But it's our view that that is the kind of determination that the Board can make and that when it does make that kind of determination that the electrical workers were not entitled to this work that that is the kind of determination which a Board has empowered to make and the only determination which the Board can make in a Section 10 (k) hearing.

And we think that that kind of a determination satisfies the obligation which rests upon the Board in a 10 (k) hearing.

Now, Section 8 (b) (4) (D) of the statute --

Justice William J. Brennan: Excuse me, Mr. Manoli.

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: I gather then an unfair labor practice proceeding follows that --

Mr. Dominick L. Manoli: After the 10 (k) hearing --

Justice William J. Brennan: Yes.

Mr. Dominick L. Manoli: -- in the event there is no -- that the union says it will not apply by the determination then we proceed as we did in business with an unfair labor practice.

Justice William J. Brennan: Now what use do you make of the 10 (k) determination and the unfair labor practice?

Mr. Dominick L. Manoli: The Board takes note as it did here of what it had done the determination that it made of the 10 (k) and on the basis of that held that the unions -- the strike was an unfair labor practice since as previously determined and it's previously determined the employer's assignment of the work was not interrogation of the certificate.

Justice William J. Brennan: Well is -- is there further evidence taken or what happens in the unfair labor practice?

Mr. Dominick L. Manoli: There would be no further evidence taken.

There will be evidence taken with respect to the nature of the strike, the responsibility of the union, whether in fact there was a strike for which the union is legally responsible and whether it comes in within Section 8 (b) 4 (D), but for the purposes of the -- of the hassle about the work itself, the Board looks to its earlier determination.

It's pretty much like the representation proceedings where the Board in representation proceeding has determined that a certain unit is the -- is a proper unit then -- and then the employer after the union is won the election and that union refuses to bargain with it in the unfair labor practice theory, the Board does not attempt to re-determine the unit new.

In fact they are going to permit evidence when there has been certain change during the interval and the Board does pretty much the same thing in an 8 (b) (4) (D) situation.

Now Section 8 (b) (4) (D), to explain how the statute works a bit, makes it an unfair labor practice for the union to attempt to override the employer's assignment unless that assignment is in derogation of a bargaining order or certification which in the language of the statute says -- which in the language of the statute determines that bargain Bargaining Representative Clause performing such work.

Now we read those exceptions to refer to a preexisting determination by the Board of the appropriate unit in an either in representation proceedings or an unfair -- previous unfair labor practice proceedings.

And that accordingly the union may not attempt to override the employer's assignment of the work unless, unless the assignment takes out from (Inaudible) unit represented by that union from purchase of collective bargaining unless it takes that work out from under that particular union.

Now I may also add -- I may also say that the Board has read Section 8 (b) (4) (D) to permit a union to engage in a strike of this -- to permit a union to strike against the -- an assignment of work which is in derogation of a collective bargaining contract.

Now the theory underlying this further exception that the Board has read into Section 8 (b) (4) (D) is that a contract of that kind like the certification defines, defines the union's bargaining union and that the unit -- and that the union is entitled to protect the integrity of that unit if the employer seeks to remove certain classifications of work from under that particular unit.

Now, if we look solely to Section 8 (b) (4) (D) the electricians' work stoppage in this case clearly has a violation of Section 8 (b) (4) (D) unless, unless as the court below holds that in a situation of this kind, the Board must arbitrate the dispute and on the basis of tradition, custom and what have you, make an affirmative award of the work to one union or the other.

Now Section 10 (k) of the statute comes into play when an 8 (b) (4) (D) charge is filed.

Normally, when you have an unfair labor practice charge filed with the Board, the general counsel investi -- general counsel investigates such a charge.

If he finds that the charge has merit he issues a complaint, the matter goes to an unfair labor practice hearing and the Board eventually may issue an unfair labor practice cert.

Section 10 (k) however provides for a somewhat different, somewhat different procedure.

It is designed to afford the parties an opportunity and this I'm coming out to your question Mr. Justice Harlan as to what function Section 10 (k) performs that couldn't be performed in an unfair labor practice situation.

It affords the parties -- it affords the parties an opportunity to resolve the matter without the intervention of the Government.

If the parties voluntarily agree upon methods for resolving the dispute and they settle the dispute, that is an end of the matter as far --

Justice William J. Brennan: The Dunlop Board created in connection with this.

Mr. Dominick L. Manoli: The Dunlap Board Your Honor and for the benefit of the other members of the Court who may not be familiar with -- but the Dunlap Board is, this is a joint board that was created shortly after 10 (k) was enacted in 1948.

Justice William J. Brennan: It was -- it was -- it inspired by the enactment of 10 (k)?

Mr. Dominick L. Manoli: Yes, it was.

That's right.

This joint board was setup by the building and trades, building department of the FFL in order to settle the disputes without the intervention of the Government and as a matter of fact during the last 13 years, the so-called Dunlap board or joint board has done a magnificent job.

Justice William J. Brennan: And is it still functioning?

Mr. Dominick L. Manoli: Oh, yes indeed, it is.

It's been -- it's been increasing, I was only a few days ago looking its annual reports and as business has been increasing and I think everyone at the Board is grateful for what the Board has --

Justice William J. Brennan: Well how that -- how does -- a case like this escaped submission to Dunlop Board?

Mr. Dominick L. Manoli: Well in order to get to the Dunlap Board of course, you must have all three parties, let's say two unions and the employer agree to submit their dispute.

Now in this case apparently --

Justice William J. Brennan: In other words are the submissions by the individual cases, isn't this some blanket agreement among the building trade to submit?

Mr. Dominick L. Manoli: There -- there -- I think there -- there is.

I'm not entirely -- I don't entirely recall what that situation is, but as I say, it's essential before that Dunlap Board can take control of these disputes that all parties, all parties --

Justice William J. Brennan: Well, I guess as Justice Stewart remarked these aren't in the building trade?

Mr. Dominick L. Manoli: That's another reason why they are not -- that's right.

This only applies to building trade.

Now as I say, I will be explaining how this like the Section 10 (k) was intended to operate to afford the parties an opportunity to settle their disputes in the Dunlop Board as the outgo to that sort of hope desire on the part of Congress.

Now as I say, if the party settled their disputes and they abide by the settlement that's an end of the matter for the Board as far as 10 (k) or 8 (b) (4) (D) are concerned.

If the private machinery however breaks down or if there is a settlement but a union fails to respect it then the Board does not go to a 10 (k) proceedings, but it immediately proceeds to the unfair labor practice complaint.

Now here, here in this case of course there was no private arrangement for the settlement of this dispute and so the Board proceeded to the Section 10 (k) hearing and the language of the statue to hear and determine the dispute out of which the alleged unfair labor practice arose.

Now Section 10 (k) does not provide any criteria, does not provide any criteria for the Board to make these determinations and since Section 8 (b) (4) (D) -- since Section 8 (b) (4) (D) is a substantive provision dealing with jurisdictional strikes and disputes under the statue, the Board has looked to Section 8 (b) (4) (D) for the purposes of -- of -- for the purposes of criteria to make its determinations in the Section 10 (k) hearings namely whether or not the assignment of the work was in derogation about orders, certificate within meaning of 8 (b) (4) (D).

Justice Felix Frankfurter: Mr. Manoli, if -- if the jurisdictional dispute that is new, a new situation, I don't know to what extent custody ended but certainly there's a lot of new situation.

Mr. Dominick L. Manoli: Oh yes.

Justice Felix Frankfurter: In fact it may well be as many old situations then you have to have standards other than well it's always been this way.

Mr. Dominick L. Manoli: Yes.

There may be situations where the Board even if it had -- were adopting the rule of court below where the Board could say well we don't think it belongs to either one, because there is no tradition or practice on the part of either, so I don't -- that just leaves them to fight it out I guess among themselves.

Justice Felix Frankfurter: Your difficulty (Inaudible) your emphasis which I get from your argument, your emphasis is the absence of standard --

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: -- provided by the statute.

Mr. Dominick L. Manoli: Yes sir.

Justice Felix Frankfurter: -- for substantive settlement is emphasized by the fact that they have to have standards in what I call new situation, new techniques in building, I mean, new installation etcetera, isn't that true as the practical fact?

Mr. Dominick L. Manoli: Well, there may -- there very well be situations where there is no practice or tradition, you're quite sure, you're quite right and under the decisions of the court below precisely what kind of standards would govern in that situation, I am at a loss.

I don't know what the Court had in mind, but the Court agreed apparently with member Murdock with (Inaudible) and certain cases of the Board where he said why you look to practice and traditions in unions constitutions and -- and the like, but there maybe situations --

Justice Felix Frankfurter: (Voice Overlap) if there is none, you can't look to it.

Mr. Dominick L. Manoli: But there isn't and you can't look to it.

That's right, but the court well I don't know what the court below would say what we had to look to in a situation of that kind.

Justice Hugo L. Black: Probably get both Unions on that, you might well be at this excessive controversy.

Mr. Dominick L. Manoli: Yes.

Chief Justice Earl Warren: Well Mr. Manoli, can we find any place there in the record the -- the policy reason behind the Board's position here as to -- because we are dealing with the matter that's pretty well on balance, is there anything that would indicate why the Court believes this is a better position to take from the -- from the other one?

Mr. Dominick L. Manoli: Your Honor, I think I've attempted to describe but I think it's a very difficult --

Chief Justice Earl Warren: I know but it's -- it isn't in -- I wonder if it's in caption form any place here where we can find it.

Mr. Dominick L. Manoli: Oh in -- in the summary of our argument, in our brief of course in caption form it's in there and I shall spend the next 30 minutes addressing myself to the considerations which I think support the Board's position.

I thought that it was necessary, because there seems to be a rather -- I think that's a bit complicated procedure to explain that to the Court and I've spent a lot of time doing it.

Justice Felix Frankfurter: Are you going to -- are you going to throw out or can you throw out the factor or the possible factor of not (Inaudible) situations.

Mr. Dominick L. Manoli: Well that to be in all -- let me put it this way that I think it would make the Board very unhappy.

It would have to decide -- it would have to decide these disputes on the basis for additional factors or not.

Justice Felix Frankfurter: If -- if the -- if the Board is in let free by the legislation either choice as an allowable choices without pushing the matters one way or the other then the reasons why they would be unhappy might be relevant to the Chief Justice's question.

Mr. Dominick L. Manoli: The -- I think the Board as I will hope to explain as I say in the next 30 minutes, I think there were fairly solid reasons which support the Board's position and I shall address myself to them very shortly.

Let's say Section 10 (k) -- Section 10 (k) does not contain any criteria for the resolution of these disputes.

Whatever criteria there are in the statute the Board has felt are in Section 8 (b) (4) (D).

Section 8 (b) (4) (D) in a sense defines -- defines the -- the area of prescribed jurisdictional disputes and the kind of strikes that the Board was directed -- was directed to enjoin.

Section 8 (b) (4) (D) makes no provision for legitimated -- for legalizing strikes, for legalizing strikes where the union was claiming the assignment of work on the basis of tradition or custom.

It seems to us, it seems to us that if Congress had meant -- had meant to carve out this category from the scope of 8 (b) (4) (D), that it would -- the natural thing would have been for Congress to accept so and neither 8 (b) (4) (D) or Section 10 (k) rather have the Board imported on its own in the Section 10 (k), but the -- but Congress did not do that.

Now, if the substantive provision of the statute 8 (b) (4) (D) does not carve out this category of legalizing strikes where the claim is based upon tradition or custom, if the substantive procedure of the provision of the statue does not do it, then it seems to us it would be demonstrably in Congress for the Board to do so on its own in a Section 10 (k) procedure.

Suppose that the Board, following the decision below were to make an affirmative award based on tradition or custom and that the employer, the employer refused to abide, refused to abide by that kind of an award and the union struck, the union struck to compel the employer to abide that award, the strike would nevertheless be a violation of Section 8 (b) (4) (D), because Section 8 (b) (4) (D) contains no exceptions for strike and support of demand which is bottomed upon tradition or custom.

Moreover whether or not we have an illegal jurisdictional strike depends upon the situation which exists at the time that the strike is called.

There is no provision on the statute, there is no provision on the statute for legalizing these strikes retroactively by virtue of a subsequent Board determination in the Section 10 (k) hearing based upon custom, tradition or practice or the like.

Not only does the decision below lead to this in congruence but I think it also -- it also leads to a very serious incongruities between Section 10 (k) and 8 (b) (4) (D) on the one hand and Section 303 of the Labor Management Relations Act.

Section 303 of the Labor Management Relations Act, as I explained a moment ago, gives to anyone who is injured by one of these jurisdictional strikes the right to sue for damages in the District Court.

Section 303 does not spell out a different offense in Section 8 (b) (4) (D).

It is couched in the same language as 8 (b) (4) (D) and the elements, the elements of the offense and let me add this that all that Section 303 does is add the sanctions of damages to the sanctions of a cease and desist order under the -- of the Board.

Chief Justice Earl Warren: We'll recess now.

Featured:

Labor Board v. Radio Engineers - Oral Argument, Part 3

Tue, 25 Sep 2012 22:37:27 +0000

Case:

Labor Board v. Radio Engineers

Media File:

69_19601114-argument-3

Related Transcript:

69_19601114-argument-3

Transcript:

Argument of Dominick L. Manoli

Chief Justice Earl Warren: You may proceed Mr. Manoli.

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

When the Court arose for the lunch and recess, I was attempting to set forth some of the incongruities which we think that the decision below gives rise to -- particularly in connection with Section 303 of the Labor Management Relations Act.

That Section as I explained gives a right to anyone who has been injured in his business by one of these jurisdictional dispute strikes, the right to bring a suit for damages.

That Section does not create a different right than is created in Section 8 (b) 4 (D) or a different offense and is created in Section 8 (b) (4) (D) but adds the sanctions of a cease and desist order, the sanctions of damages.

And as this Court made clear in the Juneau Spruce case decided some six or seven years ago, this Court made clear in that case, the elements of the offence under 8 (b) (4) (D) and 303 are the same and that prosecution for damages under 303 is in no way dependent upon an antecedent for determination under Section 10 (k).

Under Section 303, as under Section 8 (b) 4 (D), a claim to a disputed work based upon tradition, custom or what have you is irrelevant.

Now, we believe that if the -- that if the offense in -- under Section 303 is established as the statute says is established by showing that the employer's -- by showing that the employer's assignment is not in derogation of a Board certificate or order within the meaning of 8 (b) 4 (D), then tradition and practice are irrelevant to a Section 303 action and if they are irrelevant to a Section 303 action, we believe that they are also irrelevant under 8 (b) 4 (D) as well as Section 10 (k) because --

Justice William J. Brennan: Section 303 action is what -- even if 8 (b) (4) (Inaudible)

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

Due -- there had been a situation where the Board has found an 8 (b) 4 (D) violation or rather no violation of 8 (b) 4 (D) but a District Court has.

But the Court of -- the -- this Court made clear in the Juneau Spruce case however, that a Section 303 action is not dependent upon a prior board determination in a Section 10 (k) hearing.

Now, if tradition and custom are irrelevant to a 303 action, as I say, we think they are also irrelevant under the provisions of the statute that the Board administers because if it were not so -- if it were not so, you would have the rather startling result that a strike could be illegal under 303 for purposes of awarding damages and yet lawful under the unfair labor practice provisions of the statute.

Decisions below leads not only to this incongruity but it also cuts across, we think -- it also cuts across of what -- one of the most basic policies of the statute, namely the policy against discrimination in employment which encourages or discourages union membership.

Under the statute, an employer has the inherent right to select his employees and make his work assignments.

The principle restriction which a statue imposes upon the exercise of that right is that it shall not be exercised in a discriminatory fashion so as to encourage or discourage union membership.

But the ruling below which would require the Board to award -- award work affirmatively to the members of one union or another under the basis of tradition, custom and the like, would foster through the Section 10 (k) proceedings a circumvention of this policy against discrimination.

Now, let me illustrate.

Suppose that you had an employer whose employees are presently members of or represented by union A and that that employer has obtained a job.

Union B claiming that its members are entitled to this kind of work puts pressure upon him to give its members to -- or puts pressure upon the employer to give the work to his members.

Now, the employer can either discharge his employees and -- and replace them with members of union B or it can give up the job altogether.

In either case, there is discrimination against his employers by reason of their non-membership in union B.

Let me cite one more example.

Often, the jurisdictional disputes pit a union against an -- an unorganized group of employees.

If tradition or custom were to be controlling in a situation like that, the chances are that in -- in most cases, the union would probably prevail as against the unorganized group because the union undoubtedly couldn't make a better showing of tradition or custom or practice in support of its claim than could the unorganized group.

Again, you would have encouragement of the unorganized group to join the union which obtained the -- the work by virtue of its claims based upon tradition or custom or practice.

Justice Hugo L. Black: If that -- if the Board doesn't exercise power to settle this dispute as between them completely, does it leave it unsettled or what happens? Jurisdictional disputes, I have supposed, I -- I remember that they're one of the worst things in connection with labor disputes.

Mr. Dominick L. Manoli: Yes, sir.

Justice Hugo L. Black: Was long time with great effort to find some way to solve it.

That having a -- cases shown into -- that's in the Court every time that they happen, the way they settle it.

Mr. Dominick L. Manoli: Your Honor --

Justice Hugo L. Black: If -- if your action -- if the Board's position is upheld, how is the dispute settled?

Mr. Dominick L. Manoli: Your Honor, I think that there is unanimity among all the members of Congress who passed this statute that jurisdictional disputes were bad and they were against that just as they were against sin but there was quite -- they were divided as to how to reach heaven one might say in how to settle these disputes.

Justice Hugo L. Black: Well now, and could it be --

Mr. Dominick L. Manoli: Now --

Justice Hugo L. Black: What -- could it be possible if they tried to reach heaven by putting in on the Board and the Board has decided that would be heaven for them?[Laughter]

Mr. Dominick L. Manoli: No Your – [Attempt to Laughter] as I -- I shall -- as I shall explain in a moment I'm getting to it.

When we come to look at the legislative history, you will see that while there was -- some of the legislators hope that this would give the Board the power to arbitrate these disputes and settle them once and for all that after the conference committee got through with the Bills and that I will explain this shortly.

After we've -- conference committee got through with the Bills, there was very little left to that at least as we read the legislative history.

That all that was left as we see it, all was left to the Board was simply to determine a Section 10 (k) hearing, whether or not he employer's assignment was in derogation -- was in derogation of a certificate or a -- or an order of the Board which had been issued in a representation or unfair labor practice.

Justice William J. Brennan: Well I get this, Mr. Manoli, isn't the answer to Mr. Justice Black's question that it doesn't settle the jurisdictional dispute.

We get a fight between the no rights of the carpenters, the machinists and the carpenters of the no rights to -- all you decide is that the employer of a 10 (k) proceeding, the employer had the right to assign it to (Inaudible)

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

Justice William J. Brennan: And you don't settle the basic underlying so-called jurisdictional dispute between the machinists and the -- and the carpenters.

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

Mr. Justice Black however, suggested that if the Congress meant to have the Board settle that -- and I'm --

Justice Hugo L. Black: I didn't know whether they made it or not, I just recalled the history that many efforts were made to -- and to obtain some ways to dispose of these things and get them settled.

Mr. Dominick L. Manoli: As I say, there was unanimity on the part of Congress that these were bad things but they -- they didn't perhaps choose an adequate method for resolving the basic underlying disputes, though the statute does not afford that kind of solution to this problem.

Now it maybe that this are the kind of a problem that Congress left to take a look again and a -- take a look into, but as we read this statute it does not permit the Board to resolve the underlying jurisdictional dispute between the no rights of the carpenters.

Justice William J. Brennan: Well, how will (Voice Overlap) between the machinist and the carpenters going on for -- of no rights were.

Mr. Dominick L. Manoli: All of these -- all of these arguments have been going out for many, many years.

Justice Felix Frankfurter: (Inaudible) years.

Justice William J. Brennan: (Inaudible) Mr. Justice Frankfurter says (Voice Overlap) --

Mr. Dominick L. Manoli: That's all in their -- their long standing disputes and --

Justice Felix Frankfurter: Mr. Manoli, I think it will make for the orderliness of your argument if I don't interrupt it and now I want to interrupt you, speak into aspects of the legislative history so I hope you'd be able to come that.

Mr. Dominick L. Manoli: I'm turning to that --

Justice Felix Frankfurter: And that I would be chipping away at it because what I'm very curious about is what you tell us as to the representations made by business on the one hand that the chamber of commerce take any position and labor on the other hand because I should be greatly surprised if labor would want that -- wanted -- want -- would want the Wagner Board, your Board, to settle jurisdictional disputes on the merits. I should be greatly surprised if you could -- if professor Cox is quoted as saying that he is free of them, Judge Clark and pull out of there -- out of the record, he does not see it?

Mr. Dominick L. Manoli: Well, professor --

Justice Felix Frankfurter: If however -- if however the CIO would want the Board to settle the jurisdictional disputes.

Mr. Dominick L. Manoli: Well, that's been a question in my mind as to the -- whether he really would want to.

However though, Professor Cox has suggested at this Joint Board, that it can resolve many of the these -- these disputes and --

Justice Felix Frankfurter: Namely -- I mean what --

Justice William J. Brennan: The Dunlop order.

Mr. Dominick L. Manoli: The -- the Dunlop order, they called it --

Justice Felix Frankfurter: But that's a different story.

Mr. Dominick L. Manoli: Pardon me?

Justice Felix Frankfurter: That's a different story.

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: They have a sharing.

They're involved -- they are part of that.

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

I'm not so sure whether to either the unions or employers who would be willing to have the Board resolve these disputes --

Justice Felix Frankfurter: Whether on the orders, whether there was any spokesman of the either side, if I may call them side, who indicated the statement in mind of these organized bodies.

Mr. Dominick L. Manoli: I don't have any, Your Honor but here's what I do have on the legislative history.

The 1947 House Bill contained a provision which prohibited jurisdictional disputes -- jurisdictional strikes over assignment of works -- of work.

It did not contain any provision comparable to the Section 10 (k) provision.

The Senate Bill -- the Senate Bill did contain a Section 10 (k) provision which had been proposed by Senator Morse but that differs however from the present provision of the Bill in that -- in that Section 10 (k) as passed by the Senate, required the Board or an arbitrator appointed by the Board to hear and determine the dispute.

And Senator Morse said that this made for compulsory arbitration of these jurisdictional disputes.

Now, when the thing went to conference -- when the -- when this Bill went to conference, the conference deleted -- deleted from the Senate Bill, the provision empowering the Board to appoint an arbitrator to determine these disputes.

The conference bill came back to the Senate and Senator Morse complained of the deletion saying that the -- the result of the deletion would be to put the Board into the arbitration business, a kind of business for -- to which the Board had no special competence and for which these procedures were ill-suited.

Now, it is significant to know that after the conference bill was reported out and after Senator Morse had made these objections, the amendment of -- to carving out his -- his suggestions that none of the proponents of the conference bill shared the view of Senator Mores that this would put the Board into the arbitration business.

Now, I think from this legislative history, you can draw two inferences.

The Court undoubtedly will make its own appraisal of the -- of the legislative history but as we see it, the legislative history either means that the Board was put into the arbitration business or -- or that Congress, realizing the impact of putting the Board into this form of compulsory arbitration, realizing the impact of that sort of thing upon Section 303, upon the provisions prohibiting discriminations by reason of union membership, realizing those things shied away, shied away from this compulsory arbitration and left the Board to move in an area in which it had some familiarity in which it had some competence, namely whether the assignment was in derogation of a bargaining cert -- of a certificate or order within the meeting of the Section 8 (b) (4) (D).

Justice Felix Frankfurter: (Inaudible) what Senator Morse's position was?

You -- I heard that you've said that he was -- that this puts the Board into --

Mr. Dominick L. Manoli: In the arbitration.

Justice Felix Frankfurter: -- in the arbitration and therefore, he was opposed to or was he there to come for it?

Mr. Dominick L. Manoli: he -- he was opposed to having that part of this original amendment deleted, a part which empowered the Board to appoint an arbitrator.

Justice William J. Brennan: Who assumingly would be specially confident perhaps in --

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

That's right.

Justice William J. Brennan: -- the carrier.

Mr. Dominick L. Manoli: The Morse -- the Morse Bill said or the Morse amendment rather which the Senate passed said, "Either the Board or an arbitrator appointed by the Board will determine these disputes.

In the conference, the part about or appointing an arbitrator was knocked out and he complained about it that it would put the Board -- that the result would be to put the Board in this unfamiliar area of arbitrating disputes.

Justice Felix Frankfurter: Well, since it cut out the appointment of an arbitrator, well then, I should think -- could deduce from that, from Senator Morse's position that he wanted to put the Board into -- that that the result would be to put the Board -- make the Board a -- an arbitrator, compulsory arbitrator against his wisdom that it should be so.

Mr. Dominick L. Manoli: Well, Your Honor, Senator Morse was the only one who said that and as I say none of the proponents of the conference bill agreed at least vocally in Congress, agreed that this was the interpretation to be put --

Justice Felix Frankfurter: Well, he was the chairman of the committee?

Mr. Dominick L. Manoli: No, sir.

Justice Felix Frankfurter: He was there to challenge, did the committee said anything.

Mr. Dominick L. Manoli: There was nothing said about this.

They just made this -- this deletion.

The conference -- the conference report says "We have adopted the Senate" --

Justice Felix Frankfurter: Mr. Manoli, before you get to the conference report when the bill was reported out by the labor committee of the Senate, Committee on Labor and Education Boards.

Was anything he said on that subject?

On this, on 10 --

Mr. Dominick L. Manoli: What was said on it that these matters would be arbitrated by the Board or an arbitrator appointed by the Board.

That's what -- that was the proposal.

Senator Morse said that it was a form of compulsory arbitration and it would be done, either by the Board or by an arbitrator appointed, presumably, the Board and invert it --

Justice Felix Frankfurter: If you cut out --

Mr. Dominick L. Manoli: -- appoint the arbitrator.

Justice Felix Frankfurter: If -- if you cut out an appointed arbitrator, if that was cut out why doesn't that lead the purpose just the Board to do the job.

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

For this reason that one can no longer be sure that that's what the conference committee intended because in conference -- in conference --

Justice Felix Frankfurter: Well, what was this section in the House Bill?

Mr. Dominick L. Manoli: Is -- the -- the House Bill had a broad provision prohibiting all jurisdictional dispute strikes.

It had no Section 10 (k).

Justice Felix Frankfurter: That's what I'm --

Mr. Dominick L. Manoli: That's the reason, the only thing like it.

Justice Felix Frankfurter: Well, that had to be handed out between the House and the Senate conferees.

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

That's right.

Justice Felix Frankfurter: And the -- and the -- what light have we besides this thing of Morse's.

Mr. Dominick L. Manoli: We have nothing else -- nothing else but I do want to call your attention to this.

That as I say, we think that the more plausible inference is that Congress shied away from this form of compulsory arbitration because Senator Taft -- Senator Taft gave assurances -- gave assurances that section 10 (k) and 8 (b) 4 (D) were not to afford avenues of escape to either employers or to unions from the restrictions of the statute against discrimination and employment.

Justice Felix Frankfurter: Did he make any explicit comment on the argument of compulsory arbitration?

Mr. Dominick L. Manoli: No, sir.

Justice Felix Frankfurter: Can -- the committee, was it?

Mr. Dominick L. Manoli: I don't know of any --

Justice Felix Frankfurter: Except this --

Mr. Dominick L. Manoli: I don't know if there are any comments --

Justice Felix Frankfurter: But this was his Bill, wasn't it?

Mr. Dominick L. Manoli: Yes it was but he made -- I don't know of any comment other than this.

There were suggestions that as the Bill came out of conference, it was suggested that it would permit the employer -- it would permit the employer by giving work to unorganized class or groups.

It would permit the employer to under mind -- undermine the unions.

Justice Felix Frankfurter: But who -- who --

Mr. Dominick L. Manoli: And in his answer to that -- in his answer to that, he said that Section 8 (b) (4) (D) and 10 (k) were not to afford an escape from the restrictions against discrimination.

And we say Your Honor, if I may finish it, we say that if the Board is required to arbitrate these disputes in 10 (k) on the basis of tradition, custom or practice, the effect would be to afford the unions and the employers an escape from the -- these restrictions against -- against discrimination.

Justice Felix Frankfurter: May I -- may I ask you who else dealt with Senator Morse's argument that this constituted compulsory arbitration?

Who said something about arbitration among the Senators at all?

Mr. Dominick L. Manoli: Oh, there is Senator Ellender had made some remarks along those lines but this was before conference, before conference, before there was --

Justice Hugo L. Black: What did he say?

Mr. Dominick L. Manoli: Sir?

Justice Hugo L. Black: What did he say?

Mr. Dominick L. Manoli: He agreed -- he agreed with Senator -- Senator Morse that the Bill as passed by the Senate would provide for a form of compulsory arbitration.

Justice Hugo L. Black: Was for it or?

Mr. Dominick L. Manoli: He was for it.

He was for it but when it came out of conference -- when it came out of conference as I say, Senator Morse was the only one who -- who was complaining about the deletion of the arbitrator and attributed to the bill as it came out of conference of -- the Board in the arbitration business.

There are two loose things, if I may wind them up, Your Honor and one is an answer to Senator -- Mr. Justice Stewart's question.

In 1949, when there were hearings before -- when the Thomas Bill was passed by the Senate which as I say would have overruled the Board's interpretation of Section 10 (k).

I wanted to make clear that by the time that Bill was passed by the Senate and that died in the House Committee, the Board had already issued its three initial decisions in this area.

So if the Board's position was well known in 1949 when Congress -- when the Senate passed the Thomas Bill which was -- I say if it had passed that, the House would have overruled the Board's interpretation of Section 10 (k) and -- what -- my time is up.

Chief Justice Earl Warren: Mr. Silagi.

Argument of Robert Silagi

Mr. Robert Silagi: Mr. Chief Justice Warren and may it please the Court.

In the hope of presenting a better argument to the Court, Mr. Sherman and I will divide our time.

I will devote my time to a analysis of what we think is the affirmative side of our case, namely the interrelation of Section 8 (b) (4) (D) and Section 10 (k).

The legislative history of the -- of the statute, the applicable rules of the Board and the practical interpretation such as the Board says supports its construction.

Mr. Sherman will devote himself to a defensive kind of aspect of our case, namely the relationship of between Section 8 (b) 4 (D) and Section 303 (a), namely the situation which arises in the Juneau Spruce-type situation where an employer sues a labor union for engaging in a jurisdictional strike.

Mr. Sherman will also cover that aspect of the -- of our case which deals with the interrelationship of 8 (b) (4) (D) and 8 (a) (3) and 8 (b) (2) in a kind of situation which arises according to the Board's theory which gives rise to a discriminatory hire if the Board were to follow the respondent's theory of this case.

At the outset --

Justice Hugo L. Black: If -- if you can discuss the legislative history --

Mr. Robert Silagi: Yes sir, I shall.

I --

Justice Hugo L. Black: -- I presume it would -- would it throw you out anyway if you -- mention that first?

Mr. Robert Silagi: Yes.

I'd be very happy to.

Justice Hugo L. Black: That would be just -- I was following what the dispute --

Mr. Robert Silagi: I think the -- the genesis of -- of this particular Section of the Act arises in Senator Morse's experience as a member of the War Labor Board.

At his suggestion, the War Labor Board enacted as policy the requirement that where there was a jurisdictional dispute between two labor unions, the parties were given 24 hours to resolve that dispute on a private voluntary basis and if they did not, then they were required to submit to arbitration.

And of course, the dispute itself was arbitrated and actual determination was made --

Justice Hugo L. Black: On the merits?

Mr. Robert Silagi: Yes, sir and that should --

Justice Hugo L. Black: Though there's -- an award could be made of the job?

Mr. Robert Silagi: That's correct sir.

Now --

Justice Felix Frankfurter: During the war.

Mr. Robert Silagi: Yes, sir.

Justice Felix Frankfurter: During the war.

Mr. Robert Silagi: That's correct sir.

Now, when Senator Morse introduced his bill into the Senate, he embodied the same concept into his bill requiring, first, voluntary settlement within a period of 10 days and then if the parties could not resolved their own dispute, then the Board was empowered to determine the dispute out of which the unfair labor practice arose, namely this very jurisdictional dispute.

He also provided that arbitration was to be a -- a part of his bill on the theory that private arbitrators had a greater expertise in areas of this kind than the Board itself had.

As has been related here, the House adopted a rather unsophisticated approach to this problem and they imposed a flat ban on jurisdictional strikes.

The Senate adopted Senator Morse's ideas on the subject and interestingly, they not only said that the Board is empowered to hear and determine the jurisdictional dispute out of which the unfair labor practice shall have arisen but they added the words "and directed" so that there was no choice on the part -- part of the Board to hear or not to hear a jurisdictional dispute.

They were compelled to under the terms of Senator Morse's bill which then was passed by the Senate and the same arbitration -- private arbitration provisions were retained in the bill.

Now, the conference committee, to whom this was referred, followed the Senate Bill but it did two things.

It widened the scope of the jurisdictional dispute previously under the Morse bill.

It had been limited to two unions and now, it was broadened to encompass class, craft etcetera and it eliminated from Section 10 (k) the provision for private arbitration.

Now, in answer to the question --

Justice Hugo L. Black: What did that leave -- what did that leave when they eliminated the provisions for private arbitration?

Mr. Robert Silagi: It compelled the Board to act as the arbitrator.

Now, the -- the question has been asked earlier of Mr. Manoli who was in favor of this aside from Senator Morse and I have -- Mr. Manoli answered that Senator Ellender spoke in favor of this concept.

In addition to which Senator Murray also stated that Section 10 (k) required the Board itself to arbitrate the work task jurisdictional disputes.

Justice Hugo L. Black: Was he the chairman at that time?

Mr. Robert Silagi: I believe that he was not, sir.

I (Voice Overlap) --

Justice Hugo L. Black: Who was the chairman?

Justice Felix Frankfurter: Senator Taft was.

Mr. Robert Silagi: Senator Taft was.

Justice Felix Frankfurter: At that time, Senator Taft.

Mr. Robert Silagi: Yes sir.

Now, that this is the -- the (Voice Overlap) --

Justice Felix Frankfurter: (Voice Overlap)

Justice Potter Stewart: And how that was -- excuse me.

Justice Felix Frankfurter: So that these to a minority view both Senator Ellender and Senator Murray's minority views.

Mr. Robert Silagi: Well, it is the minority --

Justice Felix Frankfurter: I beg your pardon.

They are viewed by minority members of the committee.

Mr. Robert Silagi: That is correct.

Nevertheless --

Justice Potter Stewart: May I -- just a moment --

Mr. Robert Silagi: Yes, sir.

Justice Potter Stewart: May I -- were Senator Murray's views expressed before the -- before the conference between the House and the Senate (Voice Overlap)

Mr. Robert Silagi: They were expressed at the time the conference committee became the Act.

Justice Felix Frankfurter: Became what?

Mr. Robert Silagi: The -- the -- at the time -- at the time the conference committee bill became the Act, this is a discussion on the -- on the --

Justice Felix Frankfurter: You mean when the conference report came before the Senate, they addressed themselves for the -- to the problem which came out of the conference committee?

Mr. Robert Silagi: Yes, sir.

Justice Felix Frankfurter: Was he, Senator Murray, a member of the conference committee?

Mr. Robert Silagi: Yes, sir, he was.

Justice Potter Stewart: Because so far as the -- who in the Senate was -- before the original idea of having a -- of giving the Board power to appoint arbitrators, the answer is that a majority of the Senate was.

Mr. Robert Silagi: That is correct.

Justice Potter Stewart: I mean has to.

Mr. Robert Silagi: Yes.

Now these very same ideas were borne out by the veto message of -- of President Truman.

President Truman objected to this Section of the -- of the Act on the theory that in order to invoke the processes of the Labor Board, it would be necessary that the union strike.

Then he went on to say, "This peculiar situation arises from the fact that the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes of or boycotts.

So it was quite clear at least in President Truman's mind that it was the Board itself that was going to make the determination as an arbitrator.

Later on, under the discussion and the debate on the veto message, nobody, whether in favor or opposed to this bill had any doubt about the duty of the Board to settle the work allocation which was in dispute.

And the fact that the -- the -- there had been a deletion of the provision to require private arbitration, did not in itself change any of the substantive functions of the Board requiring a Board to make this arbitration award.

Justice Felix Frankfurter: Was the President Truman's veto -- would this authenticate an item included in President Truman's veto message?

Mr. Robert Silagi: Yes, sir.

Justice Felix Frankfurter: What did he say about it?

Mr. Robert Silagi: Well, this is -- this was his objection.

The fact that in order to invoke the processes of the Board in order to settle a jurisdictional dispute, the union was first required to engage in a jurisdictional dispute which everyone agreed was wrong or something that had to be avoided.

Apparently, the theory was that --

Justice Felix Frankfurter: -- I don't follow that because it grew out of the jurisdictional event.

You are dealing with ab initio with the jurisdictional route.

Mr. Robert Silagi: That's correct sir.

The President's view on the matter, as I interpret them, would have required that there be some other kind of procedure to get before the Board itself without requiring the Union to engage in a strike such as you have a -- a Section 9 petition which permits the Board to make a determination or representation of matters.

I assume the President would have preferred that a similar kind of procedure be enacted in to the law and this is what he objected to, the fact that it had become --

Justice William J. Brennan: Well, it -- would you mind reading that -- those words of his again Mr. Silagi, from the veto message?

Mr. Robert Silagi: Yes.

Justice William J. Brennan: I didn't quite get that impression if it from what you read us.

Mr. Robert Silagi: It says, "This peculiar situation, referring back to the fact that the unions would have to strike in order to invoke the settlement of jurisdictional dispute.

Justice Felix Frankfurter: Why would they have to?

Mr. Robert Silagi: This is the only way you can get before the Board, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Robert Silagi: On the 10 (k), the only way you can get the before the Board is if someone, an employer, or a union files a charge of unfair labor practice pursuant to Section 8 (b) (4) (D).

There is no other way of getting before the Board.

Unknown Speaker: But -- but what -- I still think of settling without striking.

You settle it by obedience.

Mr. Robert Silagi: Well --

Unknown Speaker: Or they could settle it to a voluntary arrangement, either see the unions.

Mr. Robert Silagi: May I refer then, Your Honor, to the --

Justice William J. Brennan: Well, would mind just reading me that language in the reprinted [Laughter]

Mr. Robert Silagi: Yes, certainly.

"This peculiar situation arises from the fact that the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes or boycotts.

Justice William J. Brennan: Well, now, is that anything more than just the very language of Section 10 (k) itself?

How does that advance?

Mr. Robert Silagi: I think it --

Justice William J. Brennan: Or that does not, it was intended that they should be --

Mr. Robert Silagi: I think this --

Justice William J. Brennan: Or it should have the power to arbitrate.

Mr. Robert Silagi: I think this indicates to the President's mind that the Board itself was given the authority to arbitrate.

Justice William J. Brennan: Isn't that the very language we have to construe here it to determine jurisdictional disputes?

Mr. Robert Silagi: Yes, it is.

In answer to --

Justice Hugo L. Black: Could you read -- the Senate to me the preceding letter in the veto?

Mr. Robert Silagi: I'm sorry.

Justice Hugo L. Black: You have it here, do you not?

It's on page 19 of your brief, it's immediately preceding to the one you've just read.

Mr. Robert Silagi: Yes.

Well if I may read the -- the quotation again, President Truman said, "The bill would force unions to strike or to boycott if they wish to have a jurisdictional dispute settled by the National Labor Relations Board.

This peculiar situation results from the fact, the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes or boycotts."

Justice Felix Frankfurter: But that's a -- as Mr. Manoli suggested that the Board's construction settles this jurisdictional dispute before it makes the employer's selection with determinative things.

Mr. Robert Silagi: Well, this is of course what we disagree with.

Well, I'm -- and may I --

Justice Felix Frankfurter: The thing is that -- that if we construe it, the Board's role would settle the jurisdictional strike --

Mr. Robert Silagi: No, sir.

Justice Felix Frankfurter: -- jurisdiction controversy.

Mr. Robert Silagi: No, sir.

I -- may I refer to the peculiar facts of this case to show you why and perhaps to -- to indicate the just -- Mr. Justice Whittaker why -- what the Board did in this case did not determine the dispute.

Here was a situation where two unions, the stagehands union and the technicians union, both having contracts by -- for the instillation and operation of a certain work task, namely lighting equipment.

I might say that only the technicians union had a certification.

The unions involved had each requested CBS to negotiate into their contracts a specific clause which would cover this disputed work.

CBS refused to do this on the theory that it could not make an affirmative award of jurisdiction to either of the competing unions in the face of conflicting claims.

This is all set forth in the record.

Now, you might ask, if this is the situation and if the technicians union has a certification, why then did not the -- the technicians union go to the Labor Board and ask for a clarification of its certification?

In the Board's brief, they quote Senator Taft.

They're saying this is a permissible thing to do.

The answer to that is that Senator Taft was -- was wrong.

It just can't be done and the Board itself has on many occasions stated that a representation preceding any clarification of a representation certification is not the proper method to settle a jurisdictional dispute.

So the only way, the parties in this case, and the only way the -- the technicians union could get its dispute settled is by striking.

Now, I should like to address myself --

Justice Felix Frankfurter: Well, after all, we've all known about outlaw strikes.

It doesn't -- no modes of settling conflict between two people.

Is that absolute guarantee that that was the -- the determination of the disputes by process of laws, the call will settle that, but in the normal instances, if -- if this is thrown back upon the employer and it makes a choice and the union chose -- does not chooses and then refuses to abide by it, that's a -- just one of the -- disregards of what the legal process is.

Mr. Robert Silagi: Well, in this case, CBS did not make a choice or it made an inconsistent choice.

Justice Felix Frankfurter: Well, I'm – I understand that.

In this case, they -- they didn't make a choice.

That's not the normal instance -- normally if -- is that the normal situation?

Do you think this is a typical situation?

Mr. Robert Silagi: Yes, sir.

I think this is a typical situation in a case where both unions have contracts and the employer either is completely neutral and refuses to make a -- a choice or as in this particular case, he does make a choice but he does it inconsistently as the Court of Appeals in the Second Circuit pointed out in its decision and this is contained in our record while we were in the very midst of handling this case before the National Labor Relations Board on the Section 10 (k) proceeding and in the midst of the Section 8 (b) (4) (D) hearing, CBS made a -- an assignment of the identical work in a different manner.

This was in relation to the -- to the show which occurred on board the Steamship United States where --

Justice Felix Frankfurter: In -- in short, it settled a dispute of -- by -- at least -- by deciding it wasn't an either or but there was (Inaudible), isn't that right?

Mr. Robert Silagi: Well, there are only two unions involved here which could possibly have done this work in -- and CBS on one hand in 1957, decided that the work belonged to the technicians and then in 1958, in the identical situation, decided that it belonged to --

Justice William J. Brennan: Decided -- decided to belong to be decided that this is one way to keep peace.

One job for one and the other jobs (Voice Overlap)

Mr. Robert Silagi: Perhaps it kept a scorecard but this is not the way to keep the peace because this doesn't settle any assignment.

Justice William J. Brennan: You think in this instance?

Mr. Robert Silagi: No, no, sir.

Justice Charles E. Whittaker: Mr. Silagi.

Mr. Robert Silagi: Yes, sir.

Justice Charles E. Whittaker: Please tell me if there had been no appeal from the Board's order here or the Court of Appeals had affirmed before it reversed it, would that have settled the dispute?

Mr. Robert Silagi: I don't think it would have settled the dispute.

Justice Charles E. Whittaker: I mean nevertheless, than it's settled.

Let me use the language of the statute, determine the dispute?

Mr. Robert Silagi: No, sir.

I don't think so.

Obviously --

Justice Charles E. Whittaker: What -- what dispute would have -- what part of the dispute would – thus has not been determined?

Mr. Robert Silagi: The underlying jurisdictional dispute is the home this work belonged.

Justice Charles E. Whittaker: Well, that's another dispute isn't it?

Isn't that another dispute?

Mr. Robert Silagi: Well what --

Justice Charles E. Whittaker: The dispute that was before the Board was whether you were entitled to this work.

The employer said no, you said yes, isn't that right?

Wouldn't that be a dispute?

Mr. Robert Silagi: Yes, sir.

Justice Charles E. Whittaker: Now, was that dispute determined by this order of the Board?

Mr. Robert Silagi: The Board pursuant to this --

Justice Charles E. Whittaker: Assume there had been no appeal?

Mr. Robert Silagi: The Board's order merely determined in effect from the Section 10 (k) order or the decision and determination, simply determined that the technicians union had violated Section 8 (b) (4) (D) which was not the proper thing for it to determine.

The proper thing for the Board to determine in Section 10 (k) was a determination of the jurisdictional dispute itself, namely to whom does this work alone.

Justice Charles E. Whittaker: Well, on that -- that that maybe to engraft a new question on to the original question as to whom the -- the work belonged.

Was not the dispute, existing between CBS and the electrical workers, the latter claiming the work and CBS denying that they were entitled to it, wasn't that the dispute?

Mr. Robert Silagi: Yes, sir.

Justice Charles E. Whittaker: Now then, the electricity -- electricians were ruled not to be entitled to it.

Now, if that was the final judgment, would that not determine the dispute?

There maybe other disputes but not that one.

Mr. Robert Silagi: In that limited sense, I think that -- that you're right.

It would've determined that very limited dispute.

Justice Charles E. Whittaker: Well then, doesn't that discharge fully the duties of the Board under 10 (k)?

Mr. Robert Silagi: No, sir.

I -- I respectfully disagree.

Justice Charles E. Whittaker: Well, -- well I am seeking enlighten.

I don't know but I'm just asking you.

Mr. Robert Silagi: I think the Board itself has shed some light on this problem in its very first decision involving Section 10 (k) in the Moore Dry Dock Company case where it is said -- describing the functions -- describing its -- describing its own functions under Section 10 (k) that "this proceeding being under Section 10 (k) has as its sole object, the determination of the dispute.

It is not an unfair labor practice proceeding at this stage.

The Act purposefully postponed that to a subsequent thing.

It is not a representation proceeding requiring certification of representatives.

There is nothing in Section 10 (k) which either expressly or by implication, requires the Board to follow the procedure set forth in Section 9.

Rather, it is a proceeding intended for the resolution of the disputes arising under Section 8 (b) (4) (D) as the language of Section 10 (k) plainly states.

And in that case, the very first case which the Board decided, the Board did what the respondent claimed it should do, namely, it made an award.

And the Board said that the international association does not entitle to require the employer to assign machinists to its members and the Board went on to say that the United Steel Workers was entitled to have the employer assign machinists -- machinist work to its members.

Unknown Speaker: (Inaudible) 49 decision?

Mr. Robert Silagi: Yes, sir.

That was in March 1949 and this occurred six days prior to the Thomas Bill which is mentioned before.

So that at that time, Congress was considering the Thomas Bill, the only decision which it had from the Board, was one which is consistent with what the respondent believes is the proper determination.

Now, the Board finds itself, in our opinion, in a dilemma with respect to contracts.

It is obvious that nothing in the Act relates to contracts per se.

The Board is simply entitled to make a determination or the -- the exception clause rather besides that it is an unfair labor practice for a jurisdictional dispute to occur unless there is a Board order or certification.

Now, in order to come out with the right result, the Board has adopted incorrect reasoning we believe and it says that in a situation such as arises in the Winslow Bros. and Smith Company case where there are two unions involved, each having contracts then in that kind of a situation, if the strike occurs and there's a contract to support it then it too becomes a part of the unless clause.

Obviously, this is a piece of administrative reply act which finds no warrant in the -- in the statute itself, but the Board is compelled to adopt that kind of a position, it has no choice and this is what it has done.

I should like to address myself for just a moment or two to the Board rules and regulations covering this aspect and this I think will shed light on what was a contemporaneous construction at the time the 1947 Act was passed and to also show what the Board felt.

The Board's brief recites the fact that its contemporaneous construction and consistent construction has been in a manner which is now says is the correct implication.

But nevertheless, back in 1947 when the Taft-Hartley Act was fresh in everyone's mind, the Board did adopt a regulation, Section 102.73 which you will find in the respondent's brief at page 8 (a) and I shall quote only the salient words.

Justice Potter Stewart: What page is that?

The --

Mr. Robert Silagi: 8 (a) of the appendix, sir.

Justice Potter Stewart: Oh, alright.

Mr. Robert Silagi: The Board regulation reads as follows, "Upon the close of the hearing, the Board shall proceed to certify the labor organization for the particular trade, craft or class of employees as the case may be which shall perform the particular work tasks in issue or to make other disposition of the matter."

We think this is quite clear on its face as to what the Board construed its own powers and duties to be.

But it if -- if it is not sufficiently clear then I ask you turn to the following page 10 (a) wherein the Board recites its statement of procedure explaining the very same Section of the Act.

This is found at the bottom of the page, Section 101.30 and I will read only the salient words again.

"The Board then considers the evidence taken at the hearing and the hearing officer's analysis together with any briefs that may be filed and the oral argument if any and it shows that certification of the labor organization or the particular trade, craft or class of employees which shall perform the particular work tasks in issue."

It is significant that in the statement of procedure, the Board even omits the language which is contained in its rule which says, "To make other disposition of the matter," and I think it's quite clear from both the rule and from its own statement of procedure that at the time this statute was enacted, the Board itself felt that it had a -- an -- an obligation to make an affirmative determination with respect to a jurisdictional dispute.

Justice John M. Harlan: Is there any other Court of Appeals or District Courts besides the Fifth Circuit (Inaudible)

Mr. Robert Silagi: No, sir.

I know of none.

Justice John M. Harlan: That's the only case?

Mr. Robert Silagi: The Second Circuit --

Justice John M. Harlan: Second --

Mr. Robert Silagi: -- Third Circuit and the Seventh Circuit have ruled contrary.

Justice John M. Harlan: Has the District Courts (Inaudible)

Mr. Robert Silagi: The District Courts helped get into this (Voice Overlap).

Thank you very much, I shall now ask Mr. Sherman to continue.

Argument of Louis Sherman

Mr. Louis Sherman: If it please the Court.

I would like to touch on a few small items that became involved earlier; first, the matter of terminologies.

I think the word dispute has to be contrasted with the words unfair labor practice.

Section 8 (b) (4) (D) makes it an unfair labor practice and I refer to page 6 (a) of our brief and I'll skip over to duplicating words engage in a strike for the purpose of forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft or class rather than the employees in the labor organization trade.

That is the unfair labor practice.

Then there is the dispute which is referred to in Section 10 (k) out of which such unfair labor practice shall have arisen.

Now it is our feeling, is that in this case, the act of the local union of the IBW in resisting the employer's assignment would come, if it all, under the unfair labor practice section and that the word dispute is a dispute between the IBW on the one hand and the IA on the other, the international --

Justice William J. Brennan: May I ask, Mr. Sherman, to the definition of the word dispute.

I mentioned earlier the historical fight between carpenters and machinists have no right.

Now, the dispute in that sense, in other words, this has been a -- this has been a controversy gone on for decades.

Is it your thought that in an action where the carpenters and the machinists might be in controversy with a particular employer that it was contemplated that the Board resolved that historical dispute over middle right work, so that it will inclusive upon both unions thereafter?

Mr. Louis Sherman: Your Honor, that is correct.

In fact, it will be recalled that in the process of passing this Bill -- to begin with, labor did not appear at the hearings.

I don't think there was any testimony by any of the leaders of the labor organizations.

As I recall it, they took their hands off added to the respect to this matter.

There was a good deal of evidence, however, with respect to the controversy between -- I believe it was the carpenters and laborers in New Jersey where a very large scale jurisdictional dispute was then going on.

And as a matter of fact, the employers were coming to watch them at that time with a cry to somebody or to settle this and there was nobody to settle it and there was of course a complete stoppage of work.

Now, then that is dispute we think --

Justice William J. Brennan: I mean that's -- that's a rather far reaching is it Mr. Sherman?

In other words, the basic underlying controversy between two unions, entirely independent of the employer would be resolved for the two unions nationally and without regard to the employer.

Mr. Louis Sherman: Well, Your Honor, we're not saying that.

We think the employer would have a part in the resolution of the dispute if he chose to do so.

We believe that the only jurisdictional dispute there can be is the dispute involving the jurisdiction of unions, There is no jurisdiction as between the employer and the --

Justice William J. Brennan: In other words, Mr. Sherman, what -- what I'm trying to get at is this.

This controversy -- again, I go back to no rights dispute, arises where these two unions may be in the same plant and many sections in the country and there maybe a -- a dispute in a particular plant over no rights dispute.

Now, what I'm trying to get to is that it's your view that the Board is required by 10 (k) to resolve in resolving the dispute in the particular plant, the whole controversy between the two unions everywhere?

Mr. Louis Sherman: No, You Honor.

We do not say that.

Justice William J. Brennan: And so that they don't resolve -- they don't resolve that which is to say then than a no rights dispute between the two unions, would come up again at another plant and the Board have to go through this all over again?

Mr. Louis Sherman: Well, this of course is exactly the same thing we have today under the Joint Board.

We have job decisions as distinguished from national decisions.

Conceive the situation where there might have been a national decision under the Joint Board, under the National Labor Relations Act.

Justice William J. Brennan: Well of course, the difficulty with the Joint Board arrangement is that by contract, is it?

That's by agreement (Voice Overlap) --

Mr. Louis Sherman: Yes.

But I'm trying to explain that even in connection with disputes of that sort, there is this distinct new job decisions and national decisions and I may say there are no national decisions, there are job decisions.

From a practical point of view presumably this would happen here too.

Now, actually, going back again for a moment to legislative history, it is true that we're talking about minority views but there's also a fact that in this particular part of the legislation and I think it is somewhat unsophisticated to talk about majority and minority, when the Congress came in that session, there had been, as you may recall, the adoption of the case, bill and veto thereof and a great wave of public opinion, we have to face that now. And the President of the Unite States, Mr. Truman, in his message does not say, "No labor legislation."

He said, "Yes" at some labor legislation.

Now, one of the things that he proposed was that legislation be enacted with respect to this problem of jurisdictional disputes.

So therefore, it is no accident.

Justice Felix Frankfurter: And what did he propose?

What did he -- in his message to Congress, what was he ready to sign on jurisdictional dispute?

Mr. Louis Sherman: Well, Your Honor, as I recall it, it was not too specific.

Justice Felix Frankfurter: Alright.

That's the point about all this business.

Mr. Louis Sherman: Yes.

Justice Felix Frankfurter: Let me put to you --

Mr. Louis Sherman: Well --

Justice Felix Frankfurter: I have now examined in the legislative history hastily and therefore -- and satisfactorily but this is what I get out of it.

That undoubtedly, the majority brought in a provision to settle jurisdictional controversies by arbitration and placed reliance on an expert arbitrator, not the Board itself.

The minority consisting, you say there was no spokesman for labor, there were no labor spokesman but there was spokesman for labor because of independency, Thomas of Utah, Maria of Montana and Pepper of Florida did express on the whole what they thought was the right way to deal with labor.

Mr. Louis Sherman: You Honor, I was only referring to testimony of the Court.

Justice Felix Frankfurter: Now, they said the minority's attack on the majority's bill was on a broad scope.

They said that so many provisions in your proposal that makes against the desirable trend and what was the desirable trend which case or this deals -- made in (Inaudible).

It was undue intervention by government and the Board in particular into labor controversies.

So what I get out of this in general attitude was that there was a specific provision for arbitration through arbitrators, to individual arbitrators.

The minority opposed all kinds of intrusion of that sort.

They opposed every aspect of settlement by -- of jurisdictional controversies through arbitration.

The thing don't -- then goes into conference and out of conference comes an excision, a deletion of the right or part of the arbitration business, namely appointment of private arbit -- of -- of expert arbitrators and we have no light at all as to the meaning of what was left except it was for the courts to determine.

I think that that -- that's right out of the reading of that legislative history.

Mr. Louis Sherman: I think that in this one area, there had been an acceptance on the part of the President and on the part of the Senators in the Committee who were favorable to labor of a necessity for doing something.

Justice Felix Frankfurter: I find no such reference in the minority report and I've read it.

Mr. Louis Sherman: Because they were satisfied, I believe, with the majority's action.

Justice Felix Frankfurter: But then that's the whole philosophy of the majority --

Mr. Louis Sherman: In generality.

Justice Felix Frankfurter: -- in taking over interferences with what should be left to the free fighting of labor.

Mr. Louis Sherman: I think Your Honor will find however that in this regard, with respect to the handling of jurisdictional disputes, they were faced, however, with a different problem.

Justice Felix Frankfurter: I may find it --

Mr. Louis Sherman: There was --

Justice Felix Frankfurter: -- but I don't find that in the minority report.

Mr. Louis Sherman: No you will not because the majority report stated exactly what they wanted to have happened because the majority committee report S.1126 as reported, contained the very provisions that we're talking about.

In other words, arbitrators -- and to hear and determine dispute power of the National Labor Relations Board and when it was passed by the Senate, it contained those very same provisions.

Justice Felix Frankfurter: And as to that, there wouldn't be any -- there wouldn't be any doubt as to what it meant, I think.

What I'm suggesting is that they cut the heart out of it in conference.

Mr. Louis Sherman: Well, Your Honor, I think the issue is whether the deletion of the authority to appoint arbitrators cut the heart out of it in substance and changed the entire picture of 10 (k) or whether on the contrary, all it meant was that an agency for decisions, that is arbitrators appointed by the Board, would not be available and the Board would continue with the task which formerly would have been done at the option of the Board, either by the Board or by the arbitrators --

Justice Felix Frankfurter: You'll have to --

Mr. Louis Sherman: -- and not because --

Justice Felix Frankfurter: You'll have to convince me and others will have to convince me to that.

When they eliminated an effective mode of arbitration, they retained an ineffective, in fact, undesirable mode of arbitration.

Mr. Louis Sherman: This of course is exactly what was said contemporaneously by Senator Morse.

In other words, he thought --

Justice Felix Frankfurter: Senator who?

Mr. Louis Sherman: -- that -- Senator Morse and he is important in this because it was his original bill, S.858, which put in these provisions.

As a matter of fact, 10 (k) was written by him as 6 (k) of his bill.

It must be remembered also, I believe, that the really rubbed attitude on the jurisdictional dispute or strike came from the House side, where they would have put down a complete ban against jurisdictional strikes or stoppages for any reasons.

In other words, this process of voluntary agreement that people getting together and so forth would have no meaning because if any union, whether it would be in the no rights of carpenters situation that you put, would strike then that in itself would be illegal.

But if we turn to the language of the bill as adopted by the Senate, it says, "The Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen," or to appoint an arbitrator to hear and to determine such as disputes, the same language, hear and determine the dispute."

One case, the Board can do it and also appoint arbitrators and in the final version the arbitrators are out and the Board has this unwelcome job which it has been --

Justice William J. Brennan: But Mr. Sherman, in the veto message of President Truman, you have quoted in your brief one excerpt but I find this -- these others in it.

The bill would require the Board to and then quoted the word “determine,” to determine jurisdictional disputes of a work tasks instead of using arbitration, they accepted the traditional method of settling such disputes.

Mr. Louis Sherman: And this of course was the complaint which was that before it could make the determinations rather than having the option of using arbitration --

Justice Felix Frankfurter: But that would --

Mr. Louis Sherman: -- for that purpose.

Justice Felix Frankfurter: But if the Board settled it on the merits that it would be a form of arbitration.

Mr. Louis Sherman: That is correct but it would not be done by an arbitrator.

Justice Felix Frankfurter: You wouldn't be using -- you wouldn't be using that language instead of the form of arbitration.

Justice William J. Brennan: I think so.

Mr. Louis Sherman: Well, Your Honor, if I may say, I think that the veto message was merely drawing attention to the fact that this available method for disposing of the dispute which they thought superior and one of the main reasons was a time factor, and that's spread out in the language by Senator Morse, would not be available.

But the --

Justice Hugo L. Black: Under the Board's construction, how can a dispute be affected to that and finally settled.

Mr. Louis Sherman: Well, as far as the Board's construction is concerned in the main it goes to the point that whatever the employer assigns is the answer because if --

Justice Hugo L. Black: You mean it leased it up, leased the employer the same position he was in before that he has to settle it and he may have -- to have gone pointed (Inaudible).

Mr. Louis Sherman: Well, that's exactly what happened here. I went through the record and there's some very interesting comments about that from the employer involved, a Mr. Fitz of CBS, where he says that, "Having these conflicting claims, he was in no position to make the decision" and I don't think he was talking just intellectually or academically.

At one point here, the trial examiner who served the case said, "Mr. Fitz testified very clearly that is between the devil and the deep blue and trying to satisfy both of them.

So that --

Justice Hugo L. Black: That has been raised in a number of antitrust cases brought before us, has it not?

Mr. Louis Sherman: Yes, Your Honor.

Justice Hugo L. Black: In connection with these jurisdictional disputes and there was considerable dissatisfaction, although the Congress has had no way to settle it?

Mr. Louis Sherman: That is correct, Your Honor.

I think the typical situation they were talking about was an employer who wasn't breaking his neck, shall we say, in making decisions between powerful unions as we're talking to no rights case.

And yet the dispute -- now, as we see it from the legislative history and we think it's born out by it.

What Congress intended was to set up a procedure under which if the thing was serious enough to warrant a strike, that there would be some way of settling not the unfair labor practice.

That would be of adjudicated in accordance with regular procedures, but the dispute out of which the unfair labor practice arose.

In this case, the controversy whether the IA Union or the IP Union should have the work referred to the people that were in it's bargaining unit or under its contract and although that may seem to be a frightening thought there is an answer to it as developed in the building trades.

There's nothing to stop the establishment of a voluntary body for settling those disputes.

Justice Hugo L. Black: That wasn't before, was there?

Mr. Louis Sherman: No Your Honor, but frankly and clearly, what the Congress did here did help to place impetus behind the establishment of a voluntary body and there were two reasons for it.

One was the language of the Act and the other was this very thing that's been mentioned which is a desire of the parties, particularly in the building trades not to have their disputes settled by the National Labor Relations Board.

But that does mean that because they desire it both management and the labor, let us say, that that changes the statutory provisions of the Act or the legislative history thereof.

There were two things they didn't want to have happened.

Now, actually there's one aspect of it if I may say in connection with this Joint Board and which is spread in our brief.

That their problem today is what to do about the employer who decides to take advantage of the Board rule and what is the Board rule?

Board rule is that if the employer assigns the work then we'll have an inquiry as to whether there is an order of certification which let's say in this industry there is none, but they don't have certifications.

Now, under those circumstances, an employer does not have the incentive to become a part of this voluntary arrangement because he can by assigning, get the full support of the federal government to restrain any conduct in violation of that assignment.

In other words, there is no play on that basis for the development of a voluntary solution of the problem.

And as I say, we set that forth in the appendix of our brief which is the position of the Joint Board.

We assumed, talking about these policy considerations, that if the National Labor Relations Board recognized to have this function but then, either one or two things would happen.

The employers will now -- do not wish to bind themselves, the Joint Board procedure would do so or if they didn't, there would be a proceeding before the National Labor Relations Board.

Justice William J. Brennan: Well, wouldn't the Joint Board out of business?

Mr. Louis Sherman: No, Your Honor.

Justice William J. Brennan: It does not?

Mr. Louis Sherman: As a matter of fact, the Joint Board plan just to see --

Justice William J. Brennan: I mean if the -- if the Board were to take on the work which the Joint Board is now doing, is there any reason for the Joint Board to continue (Voice Overlap) --

Mr. Louis Sherman: Well, they think they have the -- every reason in the world.

In other words, the parties would rather have their affair settled by the industry than they would, the (Inaudible)

Justice William J. Brennan: I thought -- I thought what you just suggest to us whether employers would have no incentive to the members of the Joint Board.

Mr. Louis Sherman: Yes.

Justice William J. Brennan: They provoked these disputes merely by work assignments (Voice Overlap) --

Mr. Louis Sherman: Well they wouldn't be doing to provoke the dispute.

What we're saying that since they have, under the Board rule, a naked power to assign whichever way they assign, however arbitrarily, however capriciously and then get the support of the federal government to suppress the labor activity that may result from that assignment that that can be a better position from their point of view in submitting to either the Joint Board or submitting to the -- National Labor Relations Board.

Justice Felix Frankfurter: Before you sit down, I hope you will deal with the question that Mr. Manoli raised, namely as to standard by which the criteria on the basis of which the Board is to become the arbitrator if that (Inaudible)

Mr. Louis Sherman: Well, Your Honor --

Justice Felix Frankfurter: You don't have time but I would like to hear you before you sit down.

Mr. Louis Sherman: I will try to answer that right now.

Certainly, if this hearing were being held at the beginning of the administration of the Wagner Act, it will be difficult for anyone to answer that question in terms of, shall we say, how are all the appropriate unit questions are going to come up in the multiplicity of American industry going to be decided, particularly since those issues were new issues as distinguished from jurisdictional dispute matters which have been decided and which exists the very real things for many, many years.

Justice Felix Frankfurter: You mean -- you mean the private arbitrators.

Mr. Louis Sherman: Yes, there has been no governmental action of this sort.

Justice Felix Frankfurter: But if -- if there's a history of jurisdictional settlement?

Mr. Louis Sherman: Yes, Your Honor.

Justice Felix Frankfurter: Well --

Mr. Louis Sherman: And I think the standards that would apply, I would certainly hesitate to define each and every one of them but it seems to me that there could be developed a series of sensible approaches to that problem just as we did with the unit questions under the Act, but it would not just be custom and practice --

Justice Felix Frankfurter: And they're -- and they're very --

Mr. Louis Sherman: -- Your Honor because actually --

Justice Felix Frankfurter: They're very different. (Inaudible)

Mr. Louis Sherman: Well, I think they are very --

Justice Felix Frankfurter: Whether you should have gone to that --

Mr. Louis Sherman: -- they are very different in legal -- in legal --

Justice Felix Frankfurter: Well, you should have 30 or 100 of who should be included in a -- under the same roof within the same legal unit is something different than whether the electricians' electrical work should have it or the carpenters should have it.

Mr. Louis Sherman: I agree with their complete -- they're different questions.

As a matter of fact, this Board here argues its position with respect to certifications and it rules that a certification of a bargaining unit has nothing to do with work tasks.

That's in the Plumber's case and in General Analog.

They are different but they are the same in this sense only, Your Honor that there will have to be some work done with respect to development of appropriate standards.

What I'm suggesting is that -- that work will be much easier in this field.

I'm not talking about the consequences. The work will be easier in this field because they have something to work on.

Your Honor, permit me, we've had -- this reference made the National Labor Board and I've gone back to those decisions.

The New York Telephone Company case, other cases, those were straight out jurisdictional disputes which during the war, were handled on the basis of an arbitration and this was certainly in Senator Morse's mind when he was the one who advanced the idea.

It did not come from Mr. Hartley, did not come from Mr. Taft.

It came from Senator Morse and it was, I think, pursuant to the presidential action in his message.

Justice Felix Frankfurter: I -- I submit again that what he had in mind is a very different thing that was finally eventuated.

Mr. Louis Sherman: Well, I suppose that is -- that is -- that's --

Justice Felix Frankfurter: I should think and do you think here and out of the war whereby, jammed around and I think they even – we're going to settle this, this afternoon.

It's a very different thing from the day to day job for the board.

Mr. Louis Sherman: Well it's a --

Justice Felix Frankfurter: I'm not saying you're wrong.

I -- I -- my mind is quite --

Mr. Louis Sherman: Well, if --

Justice Felix Frankfurter: -- caught.

Mr. Louis Sherman: If --

Justice Felix Frankfurter: But all I'm saying is that you're imposing a very different responsibility on the Board, then -- then Senator Morse's (Inaudible)

Mr. Louis Sherman: Well -- well, I'm saying Your Honor, I wouldn't borrow that.

All I'm saying is that that's what he had in mind when he made his --

Justice Felix Frankfurter: He failed in his endeavor.

Mr. Louis Sherman: I would --

Justice Felix Frankfurter: He failed in his endeavor.

Mr. Louis Sherman: I must respectfully differ Your Honor because you will find, if you compare the language of Section 6 (k) of S.858 which is his bill, with 10 (k) which is the Act that you will find omitted only the optional authority to appoint arbitrators.

Justice Felix Frankfurter: Well, I think that's the crucial thing Mr. Sherman.

That to me is so decisive. It had something to do with these matters in the First World War.

It makes all the difference in the world.

You can get the whole momentum of the White House across the street from you as I had and you know that -- that you can make the kind of speech that you ought to make and there's war going on and there were specialists doing it.

I don't think the Labor Board -- the National Labor Board is a specialist in this domain.

Mr. Louis Sherman: Well it has become a specialist to great many, Your Honor.

I don't question that.

Justice Hugo L. Black: May I -- I hope you just -- it's alright.

I can't understand the statement that this -- the heart of it was taken out.

As I understood you, I'm not sure, Senator Morse offered a bill with two alternative methods to settle the jurisdictional strike.

Is that right?

Mr. Louis Sherman: The jurisdictional dispute.

Justice Hugo L. Black: One of them wants to submit it to the Board to settle the dispute and one of them wants to submit it to arbitrators.

Is that right?

Mr. Louis Sherman: Yes Your Honor.

Justice Hugo L. Black: And there was left in, the provision which were -- left it to the Board.

Mr. Louis Sherman: That is correct, Your Honor.

Justice Hugo L. Black: Well now why -- why could anyone -- I could (Inaudible) said, I don't understand it how the mere fact that he failed to get both and they -- they refused to accept both but did accept one.

Mr. Louis Sherman: And there wasn't a person, Your Honor who stood up and said that the effect of this was anything other than the elimination of this option to appoint an arbitrator.

Justice Hugo L. Black: I can understand --

Mr. Louis Sherman: To do that which is to argue --

Justice Hugo L. Black: (Inaudible) argument against its reasonableness, in fairness, in the way of doing it.

What I can't understand, why wouldn't they have two methods suggested.

They got one that takes out the other.

Justice Felix Frankfurter: Who has to appoint the arbitrator?

Mr. Louis Sherman: I beg your pardon?

Justice Felix Frankfurter: Who has to appoint --

Mr. Louis Sherman: The Board.

Justice Felix Frankfurter: The Board.

Mr. Louis Sherman: Yes, Your Honor.

Justice Felix Frankfurter: That's the point.

Justice Charles E. Whittaker: Well isn't --

Justice Felix Frankfurter: It makes all the difference in the world and not --

Mr. Louis Sherman: It would be a government arbitrator.

That's right.

Justice Felix Frankfurter: If -- if all the difference, for one, for the Board to appoint an arbitrator than for it to do the job.

Mr. Louis Sherman: Well, the language --

Justice Felix Frankfurter: I can assure you there are great differences.

Justice Hugo L. Black: There's a big difference in the policy in issue isn't it?

But what's the difference so far as the law is concerned, so far as we are concerned in construing it.

If they -- if he offered to have it done, settle about one or two ways, if Congress refused to accept one of his ways, how can we, without trying to take over the function of the legislature, say that we want to enforce them both.

Mr. Louis Sherman: Well, actually, the conflict came between the House bill on the one hand which was intended and -- and in this regard, it was different from the war, a restrictive legal prohibition against any form of jurisdictional strike is quite no matter what --

Justice Hugo L. Black: Is that -- is that where Senator Taft offered the bill originally?

How did he offer it originally?

Was it the outlaw jurisdiction as all together?

Mr. Louis Sherman: I don't believe so.

Justice Hugo L. Black: What did he provide about?

Mr. Louis Sherman: I don't think he had anything and I think this was added by Senator Morse prior to the bill -- let me get straight.

Senator Morse's bill came in, in March.

The bill was reported.

The Taft bill was reported in April and the Taft bill as reported contained the language which is pretty close to what we have now and it contained specifically the item on arbitrators.

Well as you first have the Morse's bill in March of 1947 then you have the Taft Bill as reported by the Committee.

I'm not sure about what bill he made for this.

Justice Hugo L. Black: You're not sure what's contained in first.

Mr. Louis Sherman: I beg your pardon.

Justice Hugo L. Black: You're not sure what it contained in first?

Mr. Louis Sherman: No.

I'm sure he didn't have (Inaudible) anything in here until Morses came forward with the proper issue.

Justice Hugo L. Black: Mr. Sherman, if you have a statute, if you have a proposal, and then Senator Morse (Inaudible) that the borad should give a determination or appoint an arbitrator to hear and determine, that vary to appoint an -- an arbitrator arbitrates and they – there you've got a definition to -- is the very characterization of the official, but with that cut out, you haven't got any definition as to an arbitration.

Mr. Louis Sherman: Well if Your Honor please, we look at the language.

The Board -- and this is 10 (k) that the bill has -- and as passed.

"The Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen or to appoint an arbitrator to hear and determine such dispute unless within 10 days and so forth upon compliance by the parties to dispute with the decision of the Board, or the arbitrator appointed by the Board."

Now then, we've got to find a dichotomy here where we're talking about the decision of the Board meaning one thing and the decision of the arbitrator meaning another thing and the very sentence which gives them exactly the same effect.

If I may suggest Your Honor, leaves me simpler to say that all that happened here was -- they decided for good or for bad, but instead of having these matters decided by arbitrators at the option of the Board, they want to put the whole job in the hands of the Board.

Justice Charles E. Whittaker: Is this not what that language really means?

He's got any proceeding here shall be through the Board.

It may act itself or it may appoint an arbitrator to do so.

Now, the conference struck out the alternative leaving as the statute now leaves the language, the Board is directed to determine the dispute.

Isn't that right?

Mr. Louis Sherman: That's correct Your Honor.

Justice Charles E. Whittaker: Whereas all by striking out this alternative, they didn't -- the one they didn't weaken the other, did they?

Justice Felix Frankfurter: By rephrasing a provision of the statute which is ambiguous and making it clearer, you do not necessarily answer the question as to what the unclear provision means.

I mean --

Mr. Louis Sherman: Well, of course we have contemporaneous --

Justice Felix Frankfurter: -- the statute doesn't read that Justice Whittaker has stated it.

That is the way the statute reads out, you wouldn't be here --

Mr. Louis Sherman: That is correct.

Justice Felix Frankfurter: -- because Board would have acted differently.

The statute doesn't say or didn't say, "The Board shall have power either to do this directly or appoint an arbitrator and then struck it out."

That isn't the language.

The language was very different and they struck out that (Inaudible) -- which there was the severest attack without telling it as to why they struck it out and what they left.

Justice Charles E. Whittaker: And wasn't that language very different?

I'd -- I -- I understood that it's so.

I still --

Mr. Louis Sherman: Your Honor, it wasn't very different as far as I can see, just took out the words or to appoint an arbitrator.

Justice Felix Frankfurter: But I've suggested to you, if you leave in the word or to appoint an arbitrator one knows what an arbitrator does.

But the words to hear and determine still not leave you to determine what the scope of the determination should be.

Mr. Louis Sherman: Well, it seems to me --

Justice Hugo L. Black: What I'm saying is you do it by arbitration or to say for -- that the Board doesn't.

Justice Charles E. Whittaker: But many statutes --

Mr. Louis Sherman: Well, even -- even arbitrator is merely described.

In other words, it's as if ad hoc individual as distinguished in the five-man board more an arbitrator if you will, but the function is the same to hear and determine the dispute out of which the unfair labor practice arose.

Justice Hugo L. Black: I guess the object is the same too to get those jurisdictional disputes settled.

Mr. Louis Sherman: Yes, because I do think that the Congress was perhaps a little more far seeing than the Board.

They knew about these disputes.

They're tough and all that sort of thing, but nevertheless, just as they believe, people can refuse to settle on any basis that strikes to recognition would be lessened if there were certifications.

I -- after all, the certification is just a piece of paper too, but people tend to accept these things.

But so here with jurisdictional disputes, that if there was somebody or something or some board, which would actually decide the jurisdictional dispute that that would tend to reduce the dispute.

Of course that's what we found on the Joint Board, that's a private party which has done that.

The problems in the relationship between that Joint Board and the National Labor Relations Board as I say covered.

Justice William J. Brennan: I notice Mr. Sherman that in the preamble to the agreement that created the Dunlop Board back in 1948, recited, desired to provide for a final and authoritative disposition of such disputes by an impartial but informed tribunal that is fully familiar with the industry and its method and problem and thereby, so far as possible to avoid burdening the National Labor Relations Board with the disposition of such disputes under the provisions of 8 (b) (4) (D) and 10 (k).

Mr. Louis Sherman: That shows, Your Honor, that they had in mind this very thing that we're talking about because the kind of dispute they were going to settle was precisely the same kind of dispute they thought the Board was going to settle.

Justice William J. Brennan: In that article -- article --

Mr. Louis Sherman: As a matter of fact, in the last paragraph on this --

Justice William J. Brennan: Article 8 says, "It's the sense of the party that the members and chairman of the Joint Board shall tender to the National Board --

Mr. Louis Sherman: That's --

Justice William J. Brennan: -- their services as expert witnesses in any hearing held by that Board under 10 (k)."

Mr. Louis Sherman: Yes, Your Honor.

That -- that was what I was going to add.

Chief Justice Earl Warren: Very well.

Featured:

Labor Board v. Radio Engineers - Oral Argument, Part 1

Tue, 25 Sep 2012 22:37:26 +0000

Case:

Labor Board v. Radio Engineers

Media File:

69_19601110-argument-1

Related Transcript:

69_19601110-argument-1

Transcript:

Argument of Dominick L. Manoli

Chief Justice Earl Warren: Number 69, National Labor Relations Board, Petitioner, versus Radio and Television Broadcast Engineers Union.

Mr. Manoli.

Mr. Dominick L. Manoli: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Second Circuit.

In general, the case deals with the function of the National Labor Relations Board in administering the so-called jurisdictional disputes provisions of the National Labor Relations Act and the disposition which the Board is to make of these disputes under the statute.

Section 8 (b) (4) (D) of the statute makes it an unfair labor practice for a labor organization to engage in a strike on a work stoppage to force an employer to assign particular work to the members of a labor organization -- the members of one labor organization for trade or craft or group rather than to those of another, unless the employer is failing to conform to a Board order or certification determining the bargain representative of employees performing such work.

Section 10 (k) of the statute provides that whenever there is a charge alleging a violation of the Section 8 (b) (4) (D), the Board is empower -- is empowered and directed to hear and determine the dispute ought of which the unfair labor -- the alleged unfair labor practice arose, unless the parties have agreed upon voluntary methods for the settlement, the adjustment of the underlying dispute.

Now, these provisions of the statute have given rise to two schools of thought, as to the function of the Board in adjusting these jurisdictional disputes in the absence of a preexisting Board order or certification within the meaning of Section 8 (b) (4) (D).

Three Circuit Courts of Appeals have held that Section 10 (k) requires the Board in the absence of a Board order or certification within the meaning of 8 (b) (4) (D) that Section 10 (k) requires the Board to arbitrate the dispute.

And on the basis of such matters as tradition, practice and custom, to affirmatively award the work to one union to the members of one group or the others.

Now, the Board on the other hand and the Fifth Circuit and perhaps the Ninth Circuit have taken the position that the Board discharges its function.

In such, under Section 10 (k) when it determined solely whether the disputed assignment of work is in derogation of a Board order or certification within the meaning of Section 8 (b) (4) (D) and as I shall explain later in derogation of a collective bargaining contract covering the assignment of this work.

Now, the question before this Court in these cases is which of these views is the correct view.

Now, the facts which give rise to this controversy and the particular case here are not in dispute and I shall summarize them very briefly.

The Electrical Workers Union and the stagehands union, they have a big long name but I'll call them stagehands union.

The stagehands unions represent various technicians of the Columbia Broadcasting Company.

For many years, there's been a dispute between these two unions as to -- as to which of them is entitled to perform what is called remote lighting work.

And remote lighting work, as I understand from the record, involves the install -- the installations -- the installation and the operation of lighting equipment in connection with a telecast which originates our way from the home studio of the broadcasting company.

Now, during the period in question here, both unions had collective bargaining contracts with the Columbia Broadcasting Company but either contract, however, covered the assignment of this disputed work.

And the dispute came to ahead in 1956 in connection with a show which the company was about to televise or telecast, whatever the verb is, from the Waldorf-Astoria Hotel in New York City.

In advance of the show, the Company informed the Electrical Workers that it was going to assign this remote -- remote lighting work.

It was going to assign it for the stagehands.

The electricians protested claiming that they were entitled to this work and that they would be -- that there would be the nature of control unless they got it.

Now, the company refused to exceed to this request and the upshot was that the Electrical Workers refused to operate the cameras which was necessary in order to televise the show and as a consequence, the show was canceled.

Now, the Company then filed charges with the Board alleging that this work stoppage by the electricians was in violation of Section 8 (b) (4) (D), which as I said a moment ago makes an unfair labor practice for a union to strike to force an employer to assign particular work with members of one group or another unless it is governed by -- unless the employer's assignment of the work is in derogation of a preexisting Board order certification within the meaning of Section 8 (b) (4) (D).

Upon these charges, when these charges were filed, then the Board proceeded to the preliminary hearing that Section 10 (k) requires.

Section 10 (k), as I said a moment ago, empowers and directs the Board whenever a charge is filed alleging a violation of 8 (b) (4) (D) to hear and determine the dispute.

Justice William J. Brennan: May I ask, Mr. Manoli, do you follow the usual procedures in hearings under 10 (k) that is, if there's a reference to an examiner, the report and --

Mr. Dominick L. Manoli: There is a reference to a hearing officer.

Justice William J. Brennan: A hearing officer (Voice Overlap) --

Mr. Dominick L. Manoli: To a hearing officer but there is no report, Your Honor.

The matter then goes directly to the Board and the Board then will make a --

Justice William J. Brennan: On the record made before the hearing officer?

Mr. Dominick L. Manoli: Exactly, exactly.

Now, in the Section 10 (k) proceedings, after the hearings before a hearing officer and on the record made before him, the Board determined that there was reasonable cause to believe that the work stoppage was in violation of Section 8 (b) (4) (D).

This was an -- not ultimate determination on the facts but a determination, there was probable cause for believing that the work stoppage was within the proscription of 8 (b) (4) (D).

The Board also found in that case that the employer's assignment of this disputed remote lighting work was not in derogation of an existing Board order or certification within the meaning of Section 8 (b) (4) (D).

Justice Felix Frankfurter: It has defined it.

Mr. Dominick L. Manoli: Sir.

Justice Felix Frankfurter: It has defined it under (Inaudible)

Mr. Dominick L. Manoli: That's our theory, Your Honor.

And since --

Justice Felix Frankfurter: Is that the dispute?

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

Since the -- since the employer's assignment, as I say, was not in derogation of a Board order certification meaning of Section 8 (b) (4) (D).

Justice William J. Brennan: Excuse me, Mr. Manoli, you -- you didn't quite (Inaudible) did you?

That's not the real dispute with it.

Mr. Dominick L. Manoli: Oh, perhaps -- well, the -- I think that we take the view, we take the view that the Board discharges its functions of 10 (k) when it determines whether or not the employer's assignment of the work is in derogation of a Board order or certification within the meaning of Section 8 (b) (4) (D).

Justice William J. Brennan: The court below said you had to go beyond this.

Justice William J. Brennan: Now -- that's right.

Justice William J. Brennan: And determine who of --

Mr. Dominick L. Manoli: Exactly.

Justice William J. Brennan: -- the competing unions will have work.

Justice Felix Frankfurter: Actually, that's found under the statute.

Mr. Dominick L. Manoli: Sir?

Justice Felix Frankfurter: Actually, that's found under the statute.

Mr. Dominick L. Manoli: Well, that's the argument -- the dispute here, Your Honor.

We say we are -- that the Board need not go beyond making that finding.

Justice Felix Frankfurter: (Inaudible) one or the other.

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: All I'm saying is, that (Inaudible)

Mr. Dominick L. Manoli: Yes, sir.

Justice Felix Frankfurter: Alright.

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

Justice Charles E. Whittaker: Well, Mr. Manoli, isn't it true that the consequence or the necessary effect of what the Board appear -- did determine, went beyond what you've just said.

Here, there was a controversy as to whether the employer or the electricians should control this work.

The Board said, "We find that the electricians do not have this work, then that leave it to the employer and hasn't you then met the whole statutes of the Court of Appeals.

Mr. Dominick L. Manoli: That is our position, Your Honor.

Justice Charles E. Whittaker: Did -- you didn't go that far, did you, Mr. Manoli?

Mr. Dominick L. Manoli: Well, perhaps I don't understand the -- for the question but --

Justice Charles E. Whittaker: I thought you were just answering to Mr. Justice Brennan --

Mr. Dominick L. Manoli: Yes, sir.

Justice Charles E. Whittaker: -- that the Court of Appeals that you would not go so far as the Court of Appeals requires you to go.

Mr. Dominick L. Manoli: We, don't.

We --

Justice Charles E. Whittaker: But did not you for the purposes of this case, go fully as far necessarily as the Board held you should.

Mr. Dominick L. Manoli: The Board in this case, as I said, made the determination of the 10 (k) hearing that the employer's assignment of this work was not in derogation of a Board order or certification determining the bargaining representative of employers performing such work.

Second, it had rejected.

The Board had rejected the offer of proof on the part of the union that was entitled to this work by virtue of a past practice.

The Board has taken the position, past practice, tradition or what have you is irrelevant to the determination of this kind.

And therefore, the Board then continue to found that the union was not entitled to this work since this work was not controlled by a Board order or certification within the meaning of 8 (b) (4) (D).

Justice Charles E. Whittaker: Did that determine this dispute to use the language of the statute?

Mr. Dominick L. Manoli: That I think is one of our problems whether that is a determination of dispute within the meaning of the statute.

Justice Charles E. Whittaker: (Inaudible)

Mr. Dominick L. Manoli: [Laughs]

Justice Charles E. Whittaker: (Inaudible)

Featured: