NATIONAL LABOR RELATIONS BOARD v. LOCAL UNION NO. 1229,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 15.
Argued October 12, 1953.
Decided December 7, 1953.
Upon the facts of this case, the discharge of certain employees by their employer did not constitute an unfair labor practice within the meaning of 8 (a) (1) and 7 of the Taft-Hartley Act; their discharge was "for cause" within the meaning of 10 (c) of that Act, and the action of the Labor Board in not requiring their reinstatement is here sustained. Pp. 465-478.
Upon review of an order of the National Labor Relations Board, 94 N. L. R. B. 1507, the Court of Appeals remanded the cause to the Board for further findings. 91 U.S. App. D.C. 333, 202 F.2d 186. This Court granted certiorari. 345 U.S. 947 . Order of Court of Appeals set aside, and cause remanded to that court with instructions to dismiss, p. 478. [346 U.S. 464, 465]
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, Marvin E. Frankel, George J. Bott, David P. Findling and Samuel M. Singer.
Louis Sherman argued the cause for respondent. With him on the brief was Philip R. Collins.
MR. JUSTICE BURTON delivered the opinion of the Court.
The issue before us is whether the discharge of certain employees by their employer constituted an unfair labor practice, within the meaning of 8 (a) (1) and 7 of the Taft-Hartley Act, 1 justifying their reinstatement by the National Labor Relations Board. For the reason that their discharge was "for cause" within the meaning of 10 (c) of that Act, 2 we sustain the Board in not requiring their reinstatement. [346 U.S. 464, 466]
In 1949, the Jefferson Standard Broadcasting Company (here called the company) was a North Carolina corporation engaged in interstate commerce. Under a license from the Federal Communications Commission, it operated, at Charlotte, North Carolina, a 50,000-watt radio station, with call letters WBT. It broadcast 10 to 12 hours daily by radio and television. The television service, which it started July 14, 1949, representing an investment of about $500,000, was the only such service in the area. Less than 50% of the station's programs originated in Charlotte. The others were piped in over leased wires, generally from New York, California or Illinois from several different networks. Its annual gross revenue from broadcasting operations exceeded $100,000 but its television enterprise caused it a monthly loss of about $10,000 during the first four months of that operation, including the period here involved. Its rates for television advertising were geared to the number of receiving sets in the area. Local dealers had large inventories of such sets ready to meet anticipated demands.
The company employed 22 technicians. In December 1948, negotiations to settle the terms of their employment [346 U.S. 464, 467] after January 31, 1949, were begun between representatives of the company and of the respondent Local Union No. 1229, International Brotherhood of Electrical Workers, American Federation of Labor (here called the union). The negotiations reached an impasse in January 1949, and the existing contract of employment expired January 31. The technicians, nevertheless, continued to work for the company and their collective-bargaining negotiations were resumed in July, 3 only to break down again July 8. The main point of disagreement arose from the union's demand for the renewal of a provision that all discharges from employment be subject to arbitration and the company's counterproposal that such arbitration be limited to the facts material to each discharge, leaving it to the company to determine whether those facts gave adequate cause for discharge.
July 9, 1949, the union began daily peaceful picketing of the company's station. Placards and handbills on the picket line charged the company with unfairness to its technicians and emphasized the company's refusal to renew the provision for arbitration of discharges. The placards and handbills named the union as the representative of the WBT technicians. The employees did not strike. They confined their respective tours of picketing to their off-duty hours and continued to draw full pay. There was no violence or threat of violence and no one has taken exception to any of the above conduct.
But on August 24, 1949, a new procedure made its appearance. Without warning, several of its technicians [346 U.S. 464, 468] launched a vitriolic attack on the quality of the company's television broadcasts. Five thousand handbills were printed over the designation "WBT TECHNICIANS." These were distributed on the picket line, on the public square two or three blocks from the company's premises, in barber shops, restaurants and busses. Some were mailed to local businessmen. The handbills made no reference to the union, to a labor controversy or to collective bargaining. They read:
September 4, the union's picketing resumed its original tenor and, September 13, the union filed with the Board a charge that the company, by discharging the above-mentioned ten technicians, had engaged in an unfair labor practice. The General Counsel for the Board filed [346 U.S. 464, 470] a complaint based on those charges and, after hearing, a trial examiner made detailed findings and a recommendation that all of those discharged be reinstated with back pay. 5 94 N. L. R. B. 1507, 1527. The Board found that one of the discharged men had neither sponsored nor distributed the "Second-Class City" handbill and ordered his reinstatement with back pay. It then found that the other nine had sponsored or distributed the handbill and held that the company, by discharging them for such conduct, had not engaged in an unfair labor practice. The Board, accordingly, did not order their reinstatement. One member dissented. Id., at 1507 et seq. Under 10 (f) of the Taft-Hartley Act, 6 the union petitioned the Court of Appeals for the District of Columbia Circuit for a review of the Board's order and for such a modification of it as would reinstate all ten of the discharged technicians with back pay. That court remanded the cause to the Board for further consideration and for a finding as to the "unlawfulness" of the conduct of the employees which had led to their discharge. [346 U.S. 464, 471] 91 U.S. App. D.C. 333, 202 F.2d 186. 7 We granted certiorari because of the importance of the case in the administration of the Taft-Hartley Act. 345 U.S. 947 .
In its essence, the issue is simple. It is whether these employees, whose contracts of employment had expired, were discharged "for cause." They were discharged solely because, at a critical time in the initiation of the company's television service, they sponsored or distributed 5,000 handbills making a sharp, public, disparaging attack upon the quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's reputation and reduce its income. The attack was made by them expressly as "WBT TECHNICIANS." It continued ten days without indication of abatement. The Board found that -
Section 10 (c) of the Taft-Hartley Act expressly provides that "No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause." 8 There is no more elemental cause for discharge of an employee than disloyalty to his employer. It is equally elemental that the Taft-Hartley Act seeks to strengthen, rather than to weaken, that cooperation, continuity of service and cordial contractual relation between employer and employee that is born of loyalty to their common enterprise. 9 [346 U.S. 464, 473]
Congress, while safeguarding, in 7, the right of employees to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," 10 did not weaken the underlying contractual bonds and loyalties of employer and employee. The conference report that led to the enactment of the law said:
The above cases illustrate the responsibility that falls upon the Board to find the facts material to such decisions. The legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough. The difficulty arises in determining whether, in fact, the discharges are made because of such a separable cause or because of some other concerted activities engaged in for the purpose of collective bargaining or other mutual aid or protection which may not be adequate cause for discharge. Cf. Labor Board v. Peter Cailler Kohler Co., 130 F.2d 503.
In the instant case the Board found that the company's discharge of the nine offenders resulted from their sponsoring and distributing the "Second-Class City" handbills [346 U.S. 464, 476] of August 24 - September 3, issued in their name as the "WBT TECHNICIANS." Assuming that there had been no pending labor controversy, the conduct of the "WBT TECHNICIANS" from August 24 through September 3 unquestionably would have provided adequate cause for their disciplinary discharge within the meaning of 10 (c). Their attack related itself to no labor practice of the company. It made no reference to wages, hours or working conditions. The policies attacked were those of finance and public relations for which management, not technicians, must be responsible. The attack asked for no public sympathy or support. It was a continuing attack, initiated while off duty, upon the very interests which the attackers were being paid to conserve and develop. Nothing could be further from the purpose of the Act than to require an employer to finance such activities. Nothing would contribute less to the Act's declared purpose of promoting industrial peace and stability. 12
The fortuity of the coexistence of a labor dispute affords these technicians no substantial defense. While they were also union men and leaders in the labor controversy, they took pains to separate those categories. In contrast to their claims on the picket line as to the labor controversy, their handbill of August 24 omitted all reference to it. The handbill diverted attention from the labor controversy. It attacked public policies of the company which had no discernible relation to that controversy. The only connection between the handbill and [346 U.S. 464, 477] the labor controversy was an ultimate and undisclosed purpose or motive on the part of some of the sponsors that, by the hoped-for financial pressure, the attack might extract from the company some future concession. A disclosure of that motive might have lost more public support for the employees than it would have gained, for it would have given the handbill more the character of coercion than of collective bargaining. Referring to the attack, the Board said "In our judgment, these tactics, in the circumstances of this case, where hardly less `indefensible' than acts of physical sabotage." 94 N. L. R. B., at 1511. In any event, the findings of the Board effectively separate the attack from the labor controversy and treat it solely as one made by the company's technical experts upon the quality of the company's product. As such, it was as adequate a cause for the discharge of its sponsors as if the labor controversy had not been pending. The technicians, themselves, so handled their attack as thus to bring their discharge under 10 (c).
The Board stated "We . . . do not decide whether the disparagement of product involved here would have justified the employer in discharging the employees responsible for it, had it been uttered in the context of a conventional appeal for support of the union in the labor dispute." Id., at 1512, n. 18. This underscored the Board's factual conclusion that the attack of August 24 was not part of an appeal for support in the pending dispute. It was a concerted separable attack purporting to be made in the interest of the public rather than in that of the employees.
We find no occasion to remand this cause to the Board for further specificity of findings. Even if the attack were to be treated, as the Board has not treated it, as a concerted activity wholly or partly within the scope of those mentioned in 7, the means used by the technicians in conducting the attack have deprived the attackers of [346 U.S. 464, 478] the protection of that section, when read in the light and context of the purpose of the Act. 13
Accordingly, the order of the Court of Appeals remanding the cause to the National Labor Relations Board is set aside, and the cause is remanded to the Court of Appeals with instructions to dismiss respondent's petition to modify the order of the Board.
[ Footnote 2 ] "SEC. 10. . . .
[ Footnote 3 ] Pursuant to proceedings begun in October 1948, and to an election in May 1949, under the supervision of the Board, the union (by a vote of 12 to 2 of the 14 technicians participating) was chosen as the exclusive collective-bargaining representative of the company's technicians. May 9, 1949, the union was so certified by the Board. 94 N. L. R. B. 1507, 1529.
[ Footnote 4 ] "Dear Mr. . . .,
[ Footnote 5 ] Allegations based on the same facts and charging violations of 8 (a) (3) and (5) of the Tart-Hartley Act do not require discussion here.
[ Footnote 6 ] 61 Stat. 148-149, 29 U.S.C. (Supp. V) 160 (f).
[ Footnote 7 ] The Court of Appeals said:
[ Footnote 8 ] See note 2, supra.
[ Footnote 9 ] The Act's declaration of the policy says:
[ Footnote 10 ] See note 1, supra.
[ Footnote 11 ] National Labor Relations Act of July 5, 1935, 49 Stat. 449, 29 U.S.C. 151 et seq.
[ Footnote 12 ] ". . . An employee can not work and strike at the same time. He can not continue in his employment and openly or secretly refuse to do his work. He can not collect wages for his employment, and, at the same time, engage in activities to injure or destroy his employer's business." Hoover Co. v. Labor Board, 191 F.2d 380, 389, and see Labor Board v. Montgomery Ward & Co., 157 F.2d 486, 496; United Biscuit Co. v. Labor Board, 128 F.2d 771.
[ Footnote 13 ] See Labor Board v. Rockaway News Co., 345 U.S. 71 (discharge, for violation of an obligation to make deliveries, even though crossing a picket line, sustained); Auto. Workers v. Wisconsin Board, 336 U.S. 245, 255 -263 (arbitrary unannounced interruptions of work, not protected by 7); Southern S. S. Co. v. Labor Board, 316 U.S. 31 (discharge of seamen, for disobedience on shipboard while away from home port, sustained); Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740 (mass picketing, unprotected); Hotel Employees' Local v. Wisconsin Board, 315 U.S. 437 (violence, while picketing, unprotected); Labor Board v. Sands Manufacturing Co., 306 U.S. 332 (discharge, for repudiation of employee's agreement, sustained); Labor Board v. Fansteel Corp., 306 U.S. 240 (discharge, for tortious conduct, violence or sit-down strike, sustained); and see Associated Press v. Labor Board, 301 U.S. 103, 132 ; Labor Board v. Jones & Laughlin, 301 U.S. 1, 45 -46. See also, Cox, The Right to Engage in Concerted Activities, 26 Ind. L. J. 319 (1951); Recent Cases, 66 Harv. L. Rev. 1321 (1953).
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, dissenting.
The issue before us is not whether this Court would have sustained the Board's order in this case had we been charged by Congress, as we could not have been, "with the normal and primary responsibility for granting or denying enforcement of Labor Board orders." Labor Board v. Pittsburgh S. S. Co., 340 U.S. 498, 502 . The issue is whether we should reverse the Court of Appeals, which is so charged, because that court withheld immediate decision on the Board's order and asked the Board for further light. That court found that the Board employed [346 U.S. 464, 479] an improper standard as the basis for its decision. The Board judged the conduct in controversy by finding it "indefensible." The Court of Appeals held that by "giving `indefensible' a vague content different from `unlawful,' the Board misconceived the scope of the established rule." 91 U.S. App. D.C. 333, 335, 202 F.2d 186, 188. Within "unlawful" that court included activities which "contravene . . . basic policies of the Act." The Court of Appeals remanded the case for the Board's judgment whether the conduct of the employees was protected by 7 under what it deemed "the established rule."
On this central issue - whether the Court of Appeals rightly or wrongly found that the Board applied an improper criterion - this Court is silent. It does not support the Board in using "indefensible" as the legal litmus nor does it reject the Court of Appeals' rejection of that test. This Court presumably does not disagree with the assumption of the Court of Appeals that conduct may be "indefensible" in the colloquial meaning of that loose adjective, and yet be within the protection of 7.
Instead, the Court, relying on 10 (c) which permits discharges "for cause," points to the "disloyalty" of the employees and finds sufficient "cause" regardless of whether the handbill was a "concerted activity" within 7. Section 10 (c) does not speak of discharge "for disloyalty." If Congress had so written that section, it would have overturned much of the law that had been developed by the Board and the courts in the twelve years preceding the Taft-Hartley Act. The legislative history makes clear that Congress had no such purpose but was rather expressing approval of the construction of "concerted activities" adopted by the Board and the courts. 1 Many of the legally recognized tactics and weapons of [346 U.S. 464, 480] labor would readily be condemned for "disloyalty" were they employed between man and man in friendly personal relations. In this connection it is significant that the ground now taken by the Court, insofar as it is derived from the provision of 10 (c) relating to discharge "for cause," was not invoked by the Board in justification of its order.
To suggest that all actions which in the absence of a labor controversy might be "cause" - or, to use the words commonly found in labor agreements, "just cause" - for discharge should be unprotected, even when such actions were undertaken as "concerted activities, for the purpose of collective bargaining," is to misconstrue legislation designed to put labor on a fair footing with management. Furthermore, it would disregard the rough and tumble of strikes, in the course of which loose and even reckless language is properly discounted.
Section 7 of course only protects "concerted activities" in the course of promoting legitimate interests of labor. But to treat the offensive handbills here as though they were circulated by the technicians as interloping outsiders to the sustained dispute between them and their employer is a very unreal way of looking at the circumstances of a labor controversy. Certainly there is nothing in the language of the Act or in the legislative history to indicate that only conventional placards and handbills, headed by a trite phrase such as "UNFAIR TO LABOR," are protected. In any event, on a remand the Board could properly be asked to leave no doubt whether the technicians, in distributing the handbills, were, so far as the public could tell, on a frolic of their own or whether this tactic, however unorthodox, was no more unlawful than other union behavior previously found to be entitled to protection.
It follows that the Court of Appeals should not be reversed.
[ Footnote 1 ] H. R. Rep. No. 245, 80th Cong., 1st Sess. 27-28; H. R. Rep. No. 510, 80th Cong., 1st Sess. 38-39.