NATIONAL LABOR RELATIONS BOARD v. NEWS SYNDICATE CO., INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Argued March 1, 1961.
Decided April 17, 1961.
A collective bargaining agreement required employers to comply with union rules "not in conflict with" federal law and provided that foremen must be union members and do the hiring, but that they should be responsible only to the employers. The National Labor Relations Board found that certain union foremen had discriminated against certain nonunion employees, and it concluded that the union and an employer had violated 8 (b) (1) (A) and (2) and 8 (a) (1) and (3), respectively, of the National Labor Relations Act, as amended, by their contract arrangements and by operating an unlawful closed shop and preferential hiring system; and it ordered, inter alia, that certain employees be reimbursed for dues and assessments paid to the union during the period covered by the complaint. The Court of Appeals denied enforcement of the Board's order. Held:
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman and Norton J. Come. [365 U.S. 695, 696]
John R. Schoemer, Jr. argued the cause for News Syndicate Co., Inc., respondent. With him on the briefs were Andrew L. Hughes and Stuart N. Updike.
Gerhard P. Van Arkel argued the cause for New York Mailers' Union No. 6, respondent. With him on the brief were Henry Kaiser and David I. Shapiro.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Respondent union, affiliated with the International Typographical Union, entered into collective bargaining agreements with various publishers, including respondent News Syndicate (and Dow Jones & Co.), which contained a provision that "the General Laws of the International Typographical Union . . . not in conflict with this contract or with federal or state law shall govern relations between the parties on conditions not specifically enumerated herein." The contract limited mail-room employment to "journeymen and apprentices." The contract also provided that mail-room superintendents, foremen, and assistant foremen must be members of the union and that the foremen would do the hiring. The General Laws of ITU provided that "foremen or journeymen" should be "active members" of the union, that only union members should operate, maintain, and service any mailing machinery or equipment, that no person should be eligible as a "learner" who is not a union member.
Another provision of the contract stated, however, that "The Union shall not discipline the Foreman for carrying out the instructions of the Publisher or his representatives in accordance with this agreement." It also provided that the foremen "shall be appointed and may be removed by the Publisher."
The foreman at one plant was a union member and the Board found that he discriminated in favor of union men against a nonunion employee named Julius Arrigale. It [365 U.S. 695, 697] also found that the foreman at another plant was a union member and discriminated in favor of union men and against a nonunion employee named Burton Randall. It concluded that the union and the News Syndicate had violated 8 (b) (1) (A) and (2) and 8 (a) (1) and (3) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 140-141, as amended, 29 U.S.C. 158, respectively, by their contract arrangements and by operating an unlawful closed shop and preferential hiring system. 1 It held that vesting control over [365 U.S. 695, 698] employment in union foremen was a delegation of exclusive control over hiring to the union without the requisite safeguards prescribed by the Board in Mountain Pacific Chapter, 119 N. L. R. B. 883. The order of the Board contained various provisions including a direction that all employees in the mail-rooms be reimbursed for dues and assessments paid the union for a period beginning six months before the service of the charges against it; and this duty was made, so far as concerns the news mail-room, a joint and several liability of the union and News Syndicate. 122 N. L. R. B. 818.
The Board petitioned the Court of Appeals for enforcement of the order. That court held that the finding of discrimination against Randall was in part supported by the record; and it refused enforcement of the Board's order, allowing the Board, if it wished, to enter an order directed only to that instance of discrimination the Court of Appeals found the record to show. 279 F.2d 323. The case is here on petition for a writ of certiorari which [365 U.S. 695, 699] we granted along with No. 340, International Typographical Union v. Labor Board, post, p. 705, because of the conflict between them. 364 U.S. 877, 878 .
What we have this day decided in Carpenters Local 60 v. Labor Board, ante, p. 651, is dispositive of the provision in the Board's order requiring respondents to reimburse union members for dues and assessments.
We also believe the Court of Appeals was right in concluding that the contract on its face is not unlawful even though the foremen - who are union members - do the hiring. In the first place, the contract (unlike the General Laws) does not require journeymen and apprentices to be union members. In the second place, the provisions of the contract which we have set forth make the foremen "solely the employers' agents," as the Court of Appeals concluded. 2 279 F.2d, at 330. Finally, as we said in Teamsters Local 357 v. Labor Board, decided this day, ante, p. 667, we will not assume that unions and employers will violate the federal law, favoring discrimination in favor of union members against the clear command of this Act of Congress. As stated by the Court of Appeals, "In the absence of provisions calling explicitly [365 U.S. 695, 700] for illegal conduct, the contract cannot be held illegal because it failed affirmatively to disclaim all illegal objectives." 279 F.2d, at 330.
We also agree with the Court of Appeals that the General Laws provision of the contract is not per se unlawful. For it has in it the condition that only those General Laws of the union are incorporated which are "not in conflict with this contract or with federal or state law." Any rule or regulation of the union which permitted or required discrimination in favor of union employees would, therefore, be excluded from incorporation in the contract since it would be at war with the Act. We can say with Judge Prettyman in Honolulu Star-Bulletin v. Labor Board, 107 U.S. App. D.C. 58, 61, 274 F.2d 567, 570, that while the words "not in conflict with federal . . . law" might in some circumstances be puzzling or uncertain as to meaning, "there could hardly be any uncertainty respecting a closed-shop clause." For the command of 8 is clear and explicit and the only exception is plainly spelled out in the provisos to 8 (a) (3).
Whether in practice respondents maintained and enforced closed-shop and preferential hiring conditions raises a distinct question.
The Board's case comes down to the method by which those in the mail-room became journeymen. One could either take an apprentice training program or pass a competency examination. Apprentices were hired by the foremen; but the Court of Appeals found that there were no discriminatory practices in the actual hiring of apprentices. If a person followed the examination route, the contract provided for it to be given "by impartial examiners qualified to judge journeyman competency selected by the parties hereto." The examiners were union officials and the mail-room foremen.
The union proposed and News Syndicate agreed in 1956 to put into the class of a "regular substitute" those [365 U.S. 695, 701] extras who in the prior two years had earned 15 vacation credits, which was another way of describing those who had averaged about three days' work a week. Those who were hired on a day-to-day basis ("shaped for work") included 60 nonunion men. Of these, 31 were invited to take the examination. They passed, were made "regular substitutes," and subsequently became union members. Thereafter each of the new "regular substitutes" was hired prior to Randall, though he had "shaped" at the News longer than many of them. Randall, it appears, had full-time outside jobs that kept him from "shaping" regularly. 3 Arrigale was a nonjourneyman who shaped up for the Wall Street Journal, which had essentially the same hiring setup as the News. The asserted discrimination occurred when "outside cardmen" were hired in preference to Arrigale, although Arrigale was "shaping" steadily and was the oldest nonunion [365 U.S. 695, 702] extra. The foreman testified he took "outside card-men" because he could be sure of their competency, because they would have taken the journeyman test or had served as apprentices. There was no evidence that membership in the union was a condition for the journeyman test, save that all journeymen in fact did become union men.
Respondents, therefore, contend that to accord priority in the hire of extras to men who work regularly for the employer (and who also have the journeyman status) is a hiring system based on competency and legitimate employee qualifications.
The Court of Appeals concluded:
MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case.
[ Footnote 2 ] The 1947 amendments to the Act changed the ruling in Packard Motor Car Co. v. Labor Board, 330 U.S. 485 , which held that foremen were "employees." Section 2 (3) now excludes from the term "employees" one who is "employed as a supervisor." Section 2 (11) defines a "supervisor" as one "having authority, in the interest of the employer, to hire," etc., employees. Section 14 (a) provides:
[ Footnote 3 ] Burton Randall is neither a union member nor a journeyman within the meaning of the contract between the union and the News. The hiring practices at the News are as follows: The minimum mailing-room staff ("regular situation holders") are both union members and journeymen; they report for work each night and are not required to "shape." To fill in vacancies and to meet added needs, the foreman next turns to "regular substitutes," who are both journeymen and union members. Next in line of priority are those the Board insists are referred to as "outside card men," but who are at any rate both journeymen and union members regularly shaping up for other newspapers, but available for work on the News. The lowest priority category consists of what the Board calls "nonunion shapers" (and the union, "non-journeymen casuals"); at any rate, these men have neither union membership nor journeyman status. Within the category, such men are ranked in seniority running from the date of first shaping up for the News. Burton Randall is a "nonunion shaper" or "non-journeyman casual." He has been turning up for the "shaping" at the News for a good many years; for most of them, he showed only on Fridays and Saturdays since he held another job. From 1950 to 1956, he was third in seniority on the "casual" list; from 1956, he was first on that list.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, concurring.
I join the Court's opinion on the basis of the reasoning set forth in my concurring opinions in No. 68, ante, p. 656, and in Nos. 64 and 85, ante, p. 677.
Here, as with respect to the "hiring hall" clause in Nos. 64 and 85, I think the Board's finding that the "General Laws" clause "encouraged" union membership must be accepted. I need only add that in light of the [365 U.S. 695, 704] historic use of such clauses to maintain closed-shop conditions, I would not be willing to overrule the Board's determination that those employed or seeking employment in this newspaper's mail room would regard the innocently worded incorporation of the union's valid "General Laws" as in fact evidencing the employer's and union's intent to allow forbidden union bylaws to govern their relationship as regards employment, until a finding of an unfair labor practice arising therefrom had actually been made.
MR. JUSTICE CLARK, dissenting.
I agree with the Court's disposition of that part of the Board's order requiring respondents to reimburse union members for dues and assessments. However, for the reasons stated in my dissent in Nos. 64 and 85, ante, p. 685, I believe that the inclusion in the agreement of the "General Laws" and "Foreman" clauses violated 8 (b) (1) (A) and (2) and 8 (a) (1) and (3). I, therefore, dissent from those portions of the Court's opinion. [365 U.S. 695, 705]