*1 v. BOARD LABOR RELATIONS NATIONAL CO., INC. SUPPLY NEWS ROCKAWAY January March 1953. Argued 14, 1953 . Decided No. 318. *2 argued petitioner. Reel the cause for Frederick U. Cummings, him With on the brief were Solicitor General Bott, George Findling J. David P. Mozart Ratner. and G. argued respondent. Julius Kass the cause for With him Harry on the brief was S. Bandler.
Briefs of amici curiae urging reversal were filed Woll, J. Albert Herbert Thatcher S. and James A. Glenn for the American Federation of Labor; Arthur J. Gold- berg for Congress of Industrial Organizations; and Vladeck Stephen Sylvan C. H. Elias for the News- paper and Mail Deliverers' Union of New York and Vicinity. delivered opinion
Mr. Justice Jackson Court.
The Court of Appeals has set aside the National Labor Relations Board’s order that Rockaway News Supply Co. reinstate one Waugh Charles as a chauffeur and route- man and him make whole for an unlawful discharge. The court below was divided,1 and granted we certiorari.2
Waugh had employed been by respondent about seven years. duty His was to drive truck along regu- lar pick route to up and deliver newspapers certain other publications. One of his stops scheduled was at
1
The Nassau member, was not a estab- Waugh A. F. of which L., Re- premises Daily about the The picket line lished which, 2, 1950, prevented on March Corporation view through the except by passing newspaper of its pickup himself that the line was Waugh line. assured picket with Union connection Typographical ordered the that, informed his foreman dispute. a labor He then man, union he would not cross he was himself a because union. He was not the line of another advised picket might your “It mean to take that attitude and was told do harm to job.” Waugh insisted that he would not papers another union and asked to have the somehow him line. This was picket delivered to outside the he days, following day done for two but the was ordered get papers you to cross the line and the —“Otherwise if the fired; you refuse, you Waugh are are fired.” left daily seeking but for three weeks re- premises returned Waugh which was refused. had been will- employment to all duties he ing perform provided required was the line. personally cross union of the same members were also The other drivers Waugh’s line. to cross the he refused only but Waugh, as respond with collectively bargained union had lockouts, other cessa strikes, against provided ent which against except as therewith interference of work or tion or order decision, award, with a comply failing a party it provided. for which Board Adjustment Ad and the thereunder an arbitration initiated an award 1950, made March Board, on justment charge Waugh then filed respondent.3 favor initiated Counsel and the General practice labor unfair proceedings. these constituting the Board undersigned, the members of “The agreement between designated
Adjustment, in accordance with allegations, fol proof award as parties, having heard parties, is agreement 4 of the between Section lows: Under foreman, employee comply orders of the obligation of an objectionable personally, have the to him if such orders are brought with the to arbitration in accordance issues discussed and instance, may not, refuse He in the first procedure set forth therein. him, personally obey merely distasteful to the order because it might physical type subject him to is the of order which unless it contrary policy. danger public or be obey course, which here refused “Of the order (and eoncededly against public policy be held to have been cannot endanger him) physically particularly since the union had it does not taking any position required knowingly from and the act refrained willingly performed objection six other without addition, who were members of the union. In the contract between *4 parties specifically permit by employee does not the refusal the the comply although industry with such an order other contracts in the provision. do contain such a
“Consequently Waugh be ruled that the act of Charles must obey refusing 7, 1950, the order of the foreman on March consti- just discharge. Signed, Feinberg, tuted cause for I. Robert Im- partial Somyak, Fylstra.” Chairman; John John Adjustment
Thereunder is stated “The members of the Board des- ignated by award, York, dated, the Union dissent from this New York, New March 1950.” of decision requiring case as the see here parties rights respective toas principles abstract
sweeping But lines. picket regarding employee of declare to, be read not and should not, does this decision is here controversy The actual principles. such any Board narrow so scope, narrow very within said: opinion in its line picket to cross refusal Waugh’s
“Although normal as a Respondent, activity, protected awas could operations, its right maintain incident all perform whether to elect Waugh required have make job his striker, to vacate or, as his duties In- Respondent. by the replacement his for way Waugh.” discharged Respondent stead the follow the “We cannot said, Appeals The Court be- distinction we. The can Nor reasoning.” Board’s seems in this context replacement discharge and tween the Court in law as and unfounded unrealistic us as of the distinction application This found it. Appeals Co., 304 Mackay Labor Board v. is not sanctioned in effect any on difference It not based 333, 347. U. S. was that he finding there is no And employee. byor transfer by a new either replaced not appear as would employee, nonobjecting to some duties op- were to maintain respondent if the necessary field of in the and duties rights Substantive eration. remi- verbal ritual on depend not labor-management do law. property real of medieval niscent charge or even evidence finding, no there is In this case from antiunion resulted Waugh the dismissal him against discriminate to or did intended or bias, was organization. in a membership labor discourage obedience was the line to cross Waugh’s refusal willing to Waugh by his union. Even action any done as it was long breached, so line have *5 joined others. No other member of his own union him. position collectively He held his under his union’s bar- gained contract, adjustment processes of which went him. against respondent It is ironical that has been de- nied the result of the arbitration the Board solely respondent, by because the the contract, conceded too much to union security, allowing the union what If Taft-Hartley permit. respondent pur- Act does not any wrong sued in dealing Waugh, course it evi- dently was not due hostility organizations. to labor Board, apparently conceding if that, valid, contract between the union respondent would estab- lish against the latter’s defense charge of unfair labor practice, held the utterly null and void and de- nied it any effect in whatever this case. in Also, pro- ceeding decided June 5, 1951, the Board declared the con- illegal tract in entirety to be and set it aside. In the . present case it followed that decision said, “It would not policies effectuate the give Act to in effect this case to a contract which the Board set aside in its entirety in prior proceeding. Accordingly, the no- strike clause that contract can impact have no Waugh’s refusal to cross the line.”
The Board’s prior reference case refers to one de- cided about a month and a half before present case. But it was prior to the conduct out of which this case arises. The Board did not choose to rely on the doctrine of judicata res in present proceedings, a doc- trine whose applicability here is not free from doubt.4 The ruling that the contract is without effect was re- in examined these proceedings and readopted anas essen- tial part of the decision this case.
There are two obstacles way of the Board’s com- plete disregard of this contract. The first is that, even
4See
Corp.
Wallace
v.
Board,
Labor
We Court: unanimous a stated for Hughes Chief Justice theory on proceeded below have “The courts to be found having been Congress, Act of that inopera- it was law; that unconstitutional, duties, no imposing and rights no conferring tive, de- challenged for the no affording basis hence and that such however, clear, quite ... It is cree. determination of a effect as to the broad statements qualifi- taken with be must unconstitutionality statute, prior aof existence The cations. actual may fact and operative is an determination, such ignored. be justly cannot which consequences have judicial newaby erased always be cannot past as ruling subsequent The effect declaration. in various considered have be invalidity may indi- relations, particular respect aspects, —with pri- conduct, particular and corporate, vidual claimed rights Questions official. vate and determina- prior status, of vested, of become have ac- acted finality and have tions deemed to nature light in the public policy cordingly, of previous application, and of its of the statute both Drain- County . .” Chicot . demand examination. 374. Bank, S. 308 U. v. Baxter State age District position the Board’s way in the hurdle The second clauses separability savings it ignores is that margin.5 in the We forth which we set itself, illegal. se We do they per are known have never may be cases where there course, question not, the whole scheme of basic to provision forbidden so its terms that and so interwoven all a contract But Board here entirety. an must stand or fall as *7 concerning security union provision held that the simply “be- said, the examiner contract, the whole as invalidates of provide operation that the expressly cause it does not upon was to be conditioned union-security provision (e)9 of the provisions with- the of Section compliance 6 (Italics supplied.) Act.” objects the Board rightly The features to which separated but are the contract. only may be severed for the law and not respect The whole contract shows of it. The who could not foresee how parties, defiance 5 knowledge parties “To the best and belief of the this contract provision contrary contains no which is to federal or state law now any regulation. Should, however, provision agreement, or of this at any during life, time be in conflict with federal or state law or regulation provision only then such shall continue in effect to the permitted. any provision agreement extent of In event of this thus being inoperative, remaining provisions agreement held shall, nevertheless, remain in full force and effect.” 6 (e) (1): “Upon filing Board, by 29 U. S. C. 159 with the § per employees bargaining by centum or more of the in a unit covered agreement an organization between their and a made labor pursuant (a) (3) title, petition alleging to section 158 of a they authority .rescinded, desire that such be the Board shall take certify a secret ballot in such unit and the results thereof organization employer.” to such labor and be inter- would of the statute provisions some as security far toward as go proposed preted, they and right; their this is go, are allowed they duty. whole is their and that farther, go no proposed provisions illegal these showing no there is Moreover, discharge, his employment, Waugh’s affected way in any to this relevant party any conduct any or decision. in obedi- is not this contract obliteration
The total contrary It is of the statute. command any ence no deci- It rests doctrine. contract common-law authority. controlling judicial other any this or sion of it. Realisti- policy served public no sound seeWe enterprise stricken, be formal contract if the cally, worthy work and is to do its continues go on—labor must governed must be relationship hire. The of some apparent no reason There is terms. contractual some authority outside by some implied be why terms should bargained. collectively legal terms place take the out of the not be taken should employment have they because merely themselves parties hands of the bargain, where of their legal limits misunderstood as condemned separately may be severed the excess here. can *8 no controversy require this therefore consider We lines picket respecting or duties rights determination pro- It prescribes. this contract itself broader than or lockouts strikes, that “No agreement in this vided or therewith shall of work interference other cessation during the hereto by any party or be ordered sanctioned failing comply except against party as term hereof Adjustment or order of the decision, award, with a meaning, in ambiguous If this be considered Board.” intent and mean- offered, as evidence respondent negotiations one of the de- during ing, prove in the contract by mands made the union was a clause 80 which would have said stoppages
with reference to work line,” be cross required “No man shall by respondent and the rejected clause was this rejection in the and consented to no-strike acquiesced “All The trial examiner said: clause as above recited. in proof appear Let the offer of the record.” right. accepted From it is not whether it was or clear But rejected. interpretation the arbitrators’ in “In harmony They said, contract was with the offer. addition, parties contract between the does specifically permit by employee the refusal to com- ply although an order other such contracts do industry provision.” contain such a In the section which the Labor Management Rela- prescribes tions Act practices organizations certain of labor unfair, proviso which shall be deemed there is a that noth- ing therein “shall be unlawful a construed make refusal by any person premises to enter of any employer (other employer), than his own if the employees such employer engaged are ratified or approved strike a representative whom such such is required to recognize under this Act . ...”7 This clearly enables contracting parties to in their embody a provision against requiring an a picket cross line if they agree. so And in the nothing prevents Act their agreeing upon contrary if provisions they consider them appropriate particular kind of business An employee’s involved. breach of such an agreement may grounds be made for his discharge with- out violating Co., § 7 of the Labor Act. Board v. Sands 332, 306 S. 334. In U. some instances he may not, even with an employer’s assent, supplement the collective agreement with preferences individual over others em- (b) (4) (D). 61 Stat. C. U. S. 158§ *9 Board, S.U. Labor v. I. Co. it. J. Case under ployed 332. provisions and arbitration the no-strike hold that
We rendered they nor were prohibited, are not the contract forbidden with same the by appearing illegal recited. we have of the circumstances in view provisions unfair not an case, it was the circumstances Under judgment and Waugh, discharge to practice labor below is
Affirmed. Douglas whom with Justice Mr. Black, Justice Mr. dissenting. concur, Minton Me. Justice right a recognizes Act Taft-Hartley 7 of Section activities” in “concerted together work to employees way some One protection. aid mutual their for crossing picket from refrain to others is help men union long has picket lines for union respect Habitual lines. has been practice This men. of union practice been Taft-Hartley Act the unions. asset of prized a concerted type restrict regulate and to designed But even engage. could employees in which activities ad- unions deprive attempt did not Act that respect tomen union required of a vantage policy Congress Act, (D) (b) (4) In 8§ picket lines. its union-restrictive none declared that specifically unlawful make it be construed should provisions thrown line picket refuse cross man for a agree I Consequently strike. a lawful support up prac- unfair was an labor Board that the Labor who discharge for this tice the con- holding line. In to cross refused rights of away Court takes trary I think the standing. Taft-Hartley Act left opinion Court’s fact that despite I say this bargaining of a collective interpretation based *10 Labor accept I would place, In the first agreement. conform to the that the contract did not holding Board’s law. It seems to me Taft-Hartley requirements judg- for to substitute its an unwise the Court precedent Board. In the for that of the ment about language I in that contract place, can find no second discharge here justify which would a union line— upon respecting he insisted because (b)8 right employee by § to each reason of reserved Believing departs of the Act. the Court (4)(D) I holding does, as it would affirm policy from the Act’s the Board’s order.