MAY DEPARTMENT STORES CO., DOING BUSINESS AS FAMOUS-BARR CO., v. NATIONAL LABOR RELATIONS BOARD.
No. 39
Supreme Court of the United States
Argued October 12, 1945. - Decided December 10, 1945.
326 U.S. 376
Miss Ruth Weyand, with whom Acting Solicitor General Judson, Messrs. Mozart G. Ratner and Millard Cass were on the brief, for respondent.
MR. JUSTICE REED delivered the opinion of the Court.
This writ of certiorari brings here for review the decree of the Circuit Court of Appeals enforcing an order of the National Labor Relations Board which was entered after the Board found upon hearings that petitioner had violated Sections 8 (1) and 8 (5) of the National Labor Relations Act.1 The petition for the writ presented issues
Appropriate Unit. After a hearing in which the employer, the petitioner here, the May Department Stores Company, doing business as Famous-Barr Company, a St. Louis department store, took part, the Labor Relations Board, on June 16, 1943, found that all non-supervisory employees of the Company, then 28 in number, working in the main and basement men‘s busheling rooms, constituted an appropriate unit for collective bargaining within the meaning of § 9 (b)2 of the Labor Relations Act.
The Company contended that a store-wide unit of its five thousand employees was the most appropriate and at any rate that employees in the women‘s alteration and the fur alteration departments should be added to the employees in the men‘s busheling rooms to form the unit. As there is no provision for direct review of the determination and certification of the bargaining representative, the Company, in order to secure judicial review of the finding as to the unit, awaited this proceeding which sought a decree directing it to bargain collectively with the representative. See Inland Empire Council v. Millis, 325 U. S. 697.
A few months before this proceeding a determination that all employees of the Company subject to stated exceptions were the appropriate unit for collective bargaining had been sought by the C. I. O. The Company objected because no sufficient showing of representation was made and because it took exception to the exclusion of certain employees from the proposed unit. This petition was dismissed for failure of the C. I. O. to make a substantial showing of membership in the suggested store-wide unit. 46 N. L. R. B. 305. That prior application is not a bar to this. The Board was careful to note in this proceeding that a larger unit might be fixed as appropriate if self-organization developed. Other departments of the store had members of this and other unions as employees. This presence of union members throughout the enterprise was a matter of consideration in deciding upon the appropriate unit but was not decisive. Compare Pittsburgh Plate Glass Co. v. Labor Board, 313 U. S. 146, 156. No labor organization claimed to represent the entire body
Under § 9 (b) the Board is delegated the authority to determine the unit. The judicial review afforded is not for the purpose of weighing the evidence upon which the Board acted and perhaps to overrule the exercise of its discretion but to “guarantee against arbitrary action by the Board.”3 The Board had before it the business of the Company, the numbers of employees, the treatment of all employees as a unit by management with reference to sick leave, hospitalization, employee privileges, vacations, et cetera. Evidence was presented that a large proportion of employees in the proposed unit were members of the same union. It had testimony as to similarity and dissimilarity in tailoring and altering between the men‘s and women‘s alteration rooms. There was evidence that those who work on men‘s clothing, speaking generally, belong to a different union organization than those who work on women‘s clothes. The Board considered the interchange of workers between the two groups. We think that there was ample testimony to support the Board‘s conclusion that the employees of the two busheling rooms were an appropriate unit, since these employees had a degree of self-organization and a special trade which sufficiently differentiated them from other employees.
Form of Ballot. Petitioner objects to the certification because the ballot contained the name of the St. Louis Joint Council, United Retail, Wholesale & Department Store Employees, as a candidate for bargaining representative from the unit. This was the organization which was
The Company says that some employees may have been misled by the ballot into thinking that the Joint Council had a substantial number of the unit‘s employees as members, because elections are not ordinarily called unless that situation exists. The local was represented by the Joint Council. Cf. Labor Board v. Franks Bros. Co., 137 F. 2d 989, 992, aff‘d on other grounds, Franks Bros. Co. v. Labor Board, 321 U. S. 702. The Joint Council was chosen by a majority of the employees of the unit and certified. In the circumstances of this election, we see no basis for the Company‘s objection to the certified representative on the ground of possible confusion of the employees.
Action on Wages. The Board found that the Company interfered with, restrained and coerced its employees in the exercise of the rights guaranteed by § 7 of the Act,
“The St. Louis Joint Council, United Retail, Wholesale and Department Store Employees of America, C. I. O., . . . has been certified by the National Labor Relations Board, but we do not regard this as an appropriate unit and have consistently taken that position and have so notified all parties concerned. It is our intention to submit that question to the Courts, if and when the occasion arises. We have not recognized this Union and have not bargained with it for the employees in Departments 280 or 281 and no negotiations with that Union are pending. It is intended, however, that the employees in Departments 280 and 281 shall be included in this application.
“We do not believe that any of the organizations named in the application, nor the organization named above, have any interest whatever in the enclosed application. However, if the organization named above should object to the inclusion of the employees of Departments 280 and 281 in the application, you are advised that said application may be considered as having been amended so as to exclude those employees from the application.”
The next morning the employees were told over the store address system of the application for a wage increase for all employees, except higher paid executives and those employees “whose salaries have been fixed by closed shop
The Company urges that its request for authority, without negotiation with the certified union as to the application to the War Labor Board, was not an unfair practice under § 8 (1) but only a necessary result of its position on non-recognition of the certified representative because the Company did not agree with the Board‘s determination of the appropriate unit for the selection of representatives. The Company says it could not give recognition to the certified agent and maintain this position.
We have in a preceding division of this opinion stated our conclusion that the Joint Council was a properly certified bargaining representative. Therefore at the time of the request to the War Labor Board for authority to increase wages, the Joint Council must be considered as a properly certified bargaining agent. Company action in regard to it must be judged in that light even though its attitude toward the certification made its choice difficult.
The Joint Council was certified on July 12, 1943. After the election, the Council had requested a conference with the Company for negotiating a contract to cover wages, hours and working conditions. This request was declined on July 19th with the statement that the Company did not agree with the decision of the Board and desired to preserve its full rights to question the result as it “may see fit.” The application to the War Labor Board followed on August 30th.
It is settled law that the Labor Relations Act makes it an employer‘s duty to bargain collectively only with the
Two national labor groups had each separately sought for months to organize the Company. One effort to secure the designation of a unit had failed. The present designation was made over the protests of the Company. It had urged in its motion for reconsideration of the order of election:
“There are two competing labor organizations seeking to organize the employees in this store. By this decision one of them is granted an election in the unit composed of two departments. There are some 350 departments in this store and if this Employer is to be confronted with elections and separate bargaining for each one or two de-
By going ahead with wage adjustments without negotiation with the bargaining agent, it took a step which justified the conclusion of the Board as to the violation of § 8 (1). Such unilateral action minimizes the influence of organized bargaining. It interferes with the right of self-organization by emphasizing to the employees that there is no necessity for a collective bargaining agent. If successful in securing approval for the proposed increase of wages, it might well, as the Board points out, block the bargaining representative in securing further wage adjustments.
It may be that the Company sought only to preserve its opportunity to contest the certification of the unit. It is pointed out that the increases for which approval was sought covered several thousand employees and that it is hardly conceivable that a general increase for so many would be sought to injure so few. But the Board‘s contention is not that the application, as a whole, was for the purpose of undermining the Council. Its conclusion was that the manner of presenting and publicizing the application had the effect of coercing the employees. Instead of taking up the increase of this unit‘s wages with the Council, filing a joint application, with reservation of the Company‘s legal right to challenge the certification of the bargaining agent when any complaint might be filed for refusal to bargain collectively, or, omitting the employees of the questioned unit, if the Council would not join in such an application, the Company chose to ignore the properly certified agent. Nor can we agree that if, under the procedure suggested, the employees in this unit had been omitted from the employees who received increases, there would have been danger that the National Labor Relations Board would have considered such omission an
We find no basis for eliminating the announcements or the publication from consideration on the ground that they were an exercise of the right of free expression, secured by the First Amendment. They are a part of the totality of Company activities and were properly received by the Board as evidence of the unilateral action of the employer. Labor Board v. Virginia Power Co., 314 U. S. 469, 477.
Breadth of Order. Petitioner complains here of the refusal of the Court to modify paragraph 1 (b) of the Board‘s order to the extent which petitioner explicitly asked for below in its petition for rehearing.5 That paragraph, together with another which enjoins refusal to bargain, is
The scope of injunctions which follow National Labor Relations Board determinations is important to employer and employee. While contempt proceedings can be instituted only by the Board and in the public interest,8 the possibility of contempt penalties by the court for future Labor Act violations adds sufficient additional sanctions to make material the difference between enjoined and non-enjoined employer activities.9 The deci-
That power of the Board is subject to review under § 10. While the Board has been delegated initially the exclusive authority to prevent unfair labor practices,14 courts, which are called upon to enforce such orders by their own decrees, may examine its scope to see whether, on the evidence, they go so beyond the authority of the Board as to require modification as a matter of law before enforcement. § 10 (a) and (e). The Express Publishing Company case declared:
“To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past.” P. 437.
We think that, in the circumstances of this proceeding, although there is a violation of § 8 (1) as well as 8 (5), the violation of 8 (1) is so intertwined with the refusal to bargain with a unit asserted to be certified improperly that, without a clear determination by the Board of an attitude of opposition to the purposes of the Act to protect the rights of employees generally, the decree need not enjoin Company actions which are not determined by the Board to be so motivated.
This conclusion requires a modification of the decree so that the injunction will not apply generally to all viola-
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE RUTLEDGE, concurring in part.
I cannot agree, as the Court seems to say and the Labor Board found,1 that there were two unfair practices in this case, (1) refusal to bargain, contrary to § 8 (5); and (2) interference, restraint and coercion of employees in violation of § 8 (1). I think only one unfair labor practice was shown, namely, refusal to bargain; and for that reason I think the Board‘s order must be modified to eliminate the restraints based on its finding of violation
I am unable to understand the majority‘s application of that case to a situation in which the Board has found there were two different and substantial violations of the Act. The Court does not hold to the contrary or rule that either finding was unsupported by the evidence. Rather it seems to approve and sustain both. Yet it modifies, as I think ambiguously,2 the relief which the Board found appropriate to prevent a repetition of the interference, coercion and restraint it determined had been inflicted upon the employees, in addition to the refusal to bargain. The Express Publishing case covers no such situation. It was limited to one where the Board had imposed both types of restraint upon a finding only of refusal to bargain.3
It is apposite to inquire, therefore, whether that case has now been expanded to forbid the Board to impose
It is important for the administration of the Act to know whether the Board is to be free to adapt the remedy to fit the evil it has found to exist, as the statute commands, § 10 (c); or, on the contrary, its remedy thus adapted may be stricken down or modified although the finding which justifies it is approved. That, in my judgment, goes beyond correction of abuse of the Board‘s discretion and substitutes the Court‘s judgment for the Board‘s in devising the appropriate remedy.
For this reason it becomes important to state the different reasons why I think the order should be modified to eliminate any restraint based upon the finding of violation of § 8 (1). It is not because this Court has power or discretion, when there are two substantial and different unfair practices, to modify the Board‘s order by restricting the relief to what is appropriate to prevent
In my judgment, an employer does not commit an unfair labor practice when he does no more than exercise rights secured by the Federal Constitution and laws, including the Wagner Act.5 That Act does not put him to the choice of giving up his rights or exercising them on pain of being found guilty of unfair practice. Apart from the evidence relating to refusal to bargain under § 8 (5), there was nothing, in my opinion, which went beyond what was necessary to exercise or preserve the employer‘s rights secured by law. The application to the War Labor Board for approval of the proposed weekly increase of $2.00 for all the St. Louis employees, except those represented by recognized unions, was made August 31, 1943, shortly after the company had declined to bargain with the union in order to preserve its right to contest appropriateness of the unit. Announcements of this action over the public address system followed on September 1 and 11, with one also in “Store Chat” on September 3.
In the background of the facts, I do not think these acts amounted to more than the exercise of legal rights secured to the employer by the Wagner Act, the Stabilization Act and the First Amendment. They constituted neither a wage increase nor an offer of one. There was no more than taking steps to secure official approval, required in advance by the Stabilization Act, to make an increase, or
The case therefore is not Medo,6 in spite of the Board‘s repeated and insistent argument to the contrary. There the employer actually dealt with the employees, not only negotiating but contracting with them. So in J. I. Case Co. v. Labor Board, 321 U. S. 332. Here there was neither negotiation nor contracting. There was nothing the employer could offer at that time or the employees then could accept. There was only preparatory action looking to the possibility of later negotiations, and announcement of this action to the employees.
If the employer had the right to put itself legally in position to negotiate, either with the employees or with the union, it also had the right to state what it had done. The effect of the Board‘s decision, and now apparently of the Court‘s, is to rule that the Wagner Act so circumscribes an employer that he cannot take the necessary preliminary steps, in this case required by law, to place himself in position to undertake bargaining with his employees, whether directly or through their selected representatives. It is further to hold that if he takes such steps, without having first secured the union‘s permission, he must keep the fact to himself and dare not disclose to his employees what is to all others a matter of public record. This goes beyond protecting the rights of employees. It gives to the union a veto on management, not only as respects negotiations for terms of employment but for putting the employer in position to negotiate. No case here has gone so far and, in my judgment, the Wagner Act does not contemplate that any should do so.
Even were this true, it has not heretofore been held that the Wagner Act forbids an employer to take any preliminary step whatever looking toward dealing with his employees in the future which, though not intended to discredit the union, may have the effect to prevent it from obtaining some credit for proposing possible future action which in fact the employer has proposed. Nothing in the Act requires an employer to maintain a union‘s prestige or to give it credit for originating all proposals
Moreover the Board made no finding, presumably because there is no evidence to sustain one, of particular and concrete facts showing that the employer‘s so-called “unilateral action” adversely affected the union‘s status among its members or other employees.8 It only concluded that the action “reasonably [may] be said to have undermined the Union . . . and to have discouraged employees generally in their union affiliation.” Presumably, since no such effects were proved or found specifically, the basis for this conclusion was the Board‘s “experience,” though this was not referred to in the order or the report on which it was founded. That foundation was not sufficient, in my judgment, in the absence of proof of more unequivocal acts of unfair practice, of any finding of intent to interfere, restrain or coerce, and of any showing whatever of specific discouraging or undermining effects. Something more than supposition should underlie a conclusion which supports a finding of unfair practice.
Nor did the employer ignore the union‘s possibly legitimate status or its right to have a voice in the matter of the increase, if approval by the War Labor Board should materialize. The application set forth the essential facts with reference to the existing dispute concerning appropriateness of the unit, the employer‘s intention to litigate the question whenever it might, its nonrecognition of the
This hardly furnishes ground for concluding that the employer was attempting to “short-circuit” the union, undermine it, or discredit it with the employees. It explicitly recognized that the union, if rightly designated and certified, was entitled to say whether or not the proposed change in pay should become effective. Actually, that right was conceded, regardless of the ultimate outcome of the issue on validity of the certification.10 Clearly, in view of this concession, there was no effort either to contract with the employees directly or to deal with them, over the union‘s head, about the increase. Whether or not it should become effective as to them was left, not to the employees themselves, but to the sole and exclusive judgment of the union. There was therefore no semblance of the short-circuiting or direct dealing with employees which was present in both the Medo and the J. I. Case decisions.
Possibly for this reason the Board is driven back to its “undermining” contention. The company, it says, by including these employees, “put the union on the spot,” so that it had no real choice. The argument shows concern for the union‘s “spot,” but gives no recognition to the employer‘s. The Board does not urge that the company should have excluded these employees from the general application, with good reason. Had this been done,
This can only mean that the employer was compelled to ask the union‘s permission to include these employees; in short, that the union had the right under the Wagner Act to veto any action taken by the employer to obtain the necessary legal authority to propose any increase for them, whether directly or through the union. I do not think the Wagner Act confers such a power on the union. Nor did the Stabilization Act or the regulations in effect pursuant to its provisions do so.11 Moreover, the employer asserts that it could not refer the matter to the union without surrendering the very rights it was seeking to preserve. This, it says, would have amounted to recog-
Whether or not that is true, there was certainly good reason to believe it so. The right to review is given in terms only as an incident of an unfair practice proceeding. § 10; cf. American Federation of Labor v. Labor Board, 308 U. S. 401; Inland Empire Council v. Millis, 325 U. S. 697. In this state of the law, the company‘s only certain remedy was to withhold recognition until the matter could be determined. Had it recognized the union, by seeking its permission to include the affected employees, there would have been no factual or legal basis for the only proceedings by which review was assured; and, in order to secure it, the company then would have been forced to commit some other act of unfair practice or to take its chance upon some other doubtful remedy. In either event, it would have been confronted with its prior action of dealing with the union and the possibilities this would present either for applying the broad doctrine of estoppel or for occupying the inconsistent, not to say indefensible, position of having recognized the union and then having deliberately repudiated the recognition.
I do not think the Wagner Act was intended to put the employer in such a dilemma. It has been settled that he takes the risk of his error when he mistakenly judges that the unit is not appropriate or for other reason that the duly selected or certified union is not entitled to recognition.12 As to that, the employer‘s choice was hard, made so by the very state of the law. Had the law been that
I do not agree, therefore, that this necessitous action amounted to an additional unfair practice, in the nature of interference, coercion or restraint of employees’ rights, whether or not the finding that it was is sufficient to sustain an independent provision for relief.
A word remains to be said concerning the announcements. As has been stated, if the company had the right to make the application as it did, it also had the right to announce that fact to the public and to the employees, so long as in doing this it did not do so with intent or in a manner to violate the Act. I find nothing in the announcements to justify a finding they were made with this purpose or effect, and there is no finding to the contrary.14 They were, in my judgment, no more than an
It follows from my view of the case that the Board‘s order should be modified by striking from it Paragraph 1 (b) together with the words “and (b)” from Paragraph 2 (b), and as so modified enforced. Accordingly, I think the judgment of the Court of Appeals, enforcing the Board‘s order, should be modified in these respects and, as thus modified, affirmed.
The CHIEF JUSTICE and MR. JUSTICE FRANKFURTER join in this opinion.