National Labor Relations Board v. Strong
Dissenting Opinion
dissenting.
There is a surface logic in what the Court does today: If the Board may award back pay (which is computed from the collective bargaining agreement), it should be allowed to award fringe benefits, whose character and amount are also determined by the collective bargaining agreement. An award of back pay, however, is an express part of the legislative grant of authority,
What distinguishes the present case is the fact that fringe benefits are not products of a computer but of an arbitral process to which Congress has given strong support.
The provision for arbitration is in a sense competitive with the provision empowering the Board to remedy an unfair labor practice. It is indeed an integral part of the collective agreement providing a procedure sui generis for resolving grievances that arise.
There were proposals, as we noted in Dowd Box Co. v. Courtney, 368 U. S. 502, 510-511, to make a breach of a collective bargaining agreement an unfair labor practice subject to the jurisdiction of the National Labor Relations Board. But those proposals never gained the necessary support, Congress deciding that “[o]nee par
Arbitration is not a process which the Board is either equipped or qualified to follow. Those who are arbiters have special qualifications in a particular industry and come to know the common law of the shop.
The jurisdiction of any agency or branch of government has a built-in impetus for growth and expansion. Seldom does a department restrict its powers narrowly and assume a self-denying attitude. The tendency is to construe express powers broadly. The organism grows by subtle and little-noticed extensions of authority. To students of government this phenomenon is as predictable as the operation of other so-called “laws.”
Courts are no exception; and part of their tendency to find easy extensions of their authority was seen in their early contest with administrative agencies. See United States v. Morgan, 307 U. S. 183, 191. Recent examples
An arbiter is not of course free “to dispense his own brand of industrial justice” but is admonished “to reach a fair solution of a problem” within the letter and spirit of the collective bargaining agreement. Steelworkers v. Enterprise Corp., 363 U. S. 593, 597. The past practices of the parties, as well as the contractual provisions themselves, are the guidelines.
“A proportion of arbitration awards . . . are decided not on the basis of the evidence or of the contract or other proper considerations, but in a way which in the arbitrator’s opinion makes it likely that he will be hired for other arbitration cases.” P. Hays, Labor Arbitration: A Dissenting View 112 (1966).8
Whatever view of the process may be taken, it is clear that determining fringe benefits under a collective bargaining agreement is no job for a computer. But it can be hardly more than that when the Labor Board makes its computations for insertion in the remedial order.
What the “common law” of the shop would show covering these fringe benefits, what “past practices” might reflect on the amount of an award, what “a fair solution” of the problem might seem to be in an arbitration frame of reference, no one knows. These are matters for arbiters, chosen by the parties under the collective bargaining agreement, not for the Board, an alien to the system envisioned by Lincoln Mills.
Sec. 10 (c) of the Act authorizes the Board, when it finds an unfair labor practice, to issue “an order requiring such person to cease and desist from such unfair labor practice, and to take such
See, e. g., Aaron, “On First Looking into the Lincoln Mills Decision,” in Arbitration and the Law (Proceedings, National Academy of Arbitrators) (J. McKelvey ed. 1959); Bickel & Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1 (1957); Bunn, Lincoln Mills and the Jurisdiction to Enforce Collective Bargaining Agreements, 43 Va. L. Rev. 1247 (1957); Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482 (1959); Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich. L. Rev. 1 (1958); Feinsinger, Enforcement of Labor Agreements — A New Era In Collective Bargaining, 43 Va. L. Rev. 1261 (1957); Gregory, The Law of the Collective Agreement, 57 Mich. L. Rev. 635 (1959); Jenkins, The Impact of Lincoln Mills on the National Labor Relations Board, 6 U. C. L. A. L. Rev. 355 (1959).
See, e. g., Christensen, Arbitration, Section 301, and the National Labor Relations Act, 37 N. Y. U. L. Rev. 411 (1962); Kovarsky, Labor Arbitration and Federal Pre-emption: The Overruling of Black v. Cutter Laboratories, 47 Minn. L. Rev. 531 (1963); Smith & Jones, The Impact of the Emerging Federal Law of Grievance Arbitration on Judges, Arbitrators, and Parties, 52 Va. L. Rev. 831 (1966); Smith & Jones, The Supreme Court and Labor Dispute Arbitration: The Emerging Federal Law, 63 Mich. L. Rev. 751 (1965); Comment, Common Law of Grievance Arbitration: New Wine in Old Bottles?, 58 Nw. U. L. Rev. 494 (1963).
C. N. Parkinson, Parkinson’s Law (1957).
See Aaron, Arbitration in the Federal Courts: Aftermath of the Trilogy, 9 U. C. L. A. L. Rev. 360 (1962); Davey, The Supreme Court and Arbitration: The Musings of an Arbitrator, 36 Notre Dame Law. 138 (1961); Fleming, Some Observations on Contract Grievances Before Courts and Arbitrators, 15 Stan. L. Rev. 595 (1963); Gregory, Enforcement of Collective Agreements by Arbitration, 48 Va. L. Rev. 883 (1962); Jones, The Name of the Game is Decision — Some Reflections on “Arbitrability” and “Authority” in Labor Arbitration, 46 Texas L. Rev. 865 (1968); Mayer, Labor Relations, 1961: The Steelworkers Cases Re-examined, 13 Lab. L. J. 213 (1962); Meltzer, The Supreme Court, Arbitrability and Collective Bargaining, 28 U. Chi. L. Rev. 464 (1961); Jones & Smith, Management and Labor Appraisals and Criticisms of the Arbitration Process: A Report with Comments, 62 Mich. L. Rev. 1115 (1964).
See Treece, Past Practice and Its Relationship to Specific Contract Language in the Arbitration of Grievance Disputes, 40 U. Colo. L. Rev. 358, 360 et seq. (1968). Domke, Arbitration, 36 N. Y. U. L. Rev. 545 (1961); Fleming, Reflections on the Nature of Labor Arbitration, 61 Mich. L. Rev. 1245 (1963).
Aaron, Judicial Intervention in Labor Arbitration, 20 Stan. L. Rev. 41, 55 (1967).
But see Meltzer, Ruminations About Ideology, Law, and Labor Arbitration, 34 U. Chi. L. Rev. 545 (1967).
Opinion of the Court
delivered the opinion of the Court.
The Roofing Contractors Association of Southern California, of which respondent was then a member, negotiated a collective bargaining contract with the Roofers Union
Believing the remedy provided by the Board was well within its powers, we reverse the judgment of the Court of Appeals. Section 10 (c) of the Act empowers the Board when it adjudicates an unfair labor practice to issue “an order requiring such person to cease and desist
Here the unfair labor practice was the failure of the employer to sign and acknowledge the existence of a collective bargaining agreement which had been negotiated and concluded on his behalf. There is no dispute that respondent withdrew from the Roofing Contractors Association too late to escape the binding force of the agreement it had negotiated for him, supplanting previous agreements which had been negotiated in the same way.
The challenge of the employer, in brief, is that ordering the payment of fringe benefits reserved in the contract inserts the Board into the enforcement of the collective bargaining agreement, contrary to the policy and scheme of the statute.
Bearing more precisely on this case, the Board is expressly invited by the Act to determine whether an employer has refused to bargain in good faith and thereby violated § 8 (a) (5) by resisting “the execution of a written contract incorporating any agreement reached if requested by either party . . . .” § 8 (d), 61 Stat. 142, 29 U. S. C. § 158 (d); H. J. Heinz Co. v. NLRB, 311 U. S. 514, 524-526 (1941). The Board is not trespassing on forbidden territory when it inquires whether negotiations have produced a bargain which the employer has refused to sign and honor, particularly when the employer has refused to recognize the very existence of the contract providing for the arbitration on which he now insists. To this extent the collective contract is the Board’s affair, and an effective remedy for refusal to sign is its proper business.
The case before us is little, if any, different. The act of refusing to sign the collective bargaining agreement may not have been a breach of contract, but it was an unfair practice. Once adjudicated, it could be remedied by a Board order requiring payment of those fringe benefits which would have been paid had the employer signed and acknowledged the contract which had been duly negotiated on his behalf. The judgment of the Court of Appeals is reversed.
It is so ordered.
Roofers Local 36, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association.
See generally Nathanson v. NLRB, 344 U. S. 25, 29-30 (1952); Note, A Survey of Labor Remedies, 54 Va. L. Rev. 38, 41-95 (1968).
Respondent is a past president of the Association, and thus was familiar with its bylaw that a “labor contract negotiated by the Committee shall be binding upon the Regular Members of this Association separately and collectively ...”
The fact that the payments in question here did not constitute direct pay to the employees is irrelevant in our view of this case. Whether the payments were made to the employees, who then contributed them to union trust funds in the form of higher union dues, or whether as here they passed straight from the employer to the trust funds, the final result is the same. And it is just as much in the interest of “effectuat[ing] the policies of this Act,” and of making the employees whole, to require the payments in either case.
Steelworkers Trilogy, 363 U. S. 564, 574, 593 (1960). Congress established the judicial remedy of § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185, in lieu of a proposal to make breach of a collective bargaining agreement itself an unfair labor practice. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41-42. The House Conference Report asserts that “[o]nce parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board,” id., at 42. See Textile Workers v. Lincoln Mills, 353 U. S. 448, 452 (1957). Cf. LMRA § 201, 61 Stat. 152, 29 TJ. S. C. § 171.
Concurring Opinion
concurs in the reversal of the Court of Appeals’ judgment, but he would direct that the cause be remanded to the Board for it to determine whether to submit the case to arbitration in accord with the contract.
Reference
- Full Case Name
- NATIONAL LABOR RELATIONS BOARD v. STRONG, Dba STRONG ROOFING & INSULATING CO.
- Cited By
- 171 cases
- Status
- Published