National Labor Relations Board v. Strong
393 U.S. 357
SCOTUS
1969
Check Treatment

*1 BOARD RELATIONS LABOR NATIONAL & ROOFING STRONG, STRONG dba CO. INSULATING January 15, 1969. 10, 1968. Decided Argued December No. 61. argued petitioner. Weinstein cause Harris Griswold, General him the brief were Solicitor With on Ordman, Manoli, L. Norton J. Arnold Dominick Gome. Jr., Bakaly, argued respondent. the cause for

Charles G. William him the brief was B. Carman. on With opinion Mr. Justice delivered the of the Court. White Association of Southern Cal- Roofing Contractors respondent negoti- was then ifornia, member, *2 a collective contract with the Roofers ated establishing compen- August 15, 1963, effective Union1 employees of member firms for the sation for levels sought years. August 1963, respondent next four On 20, multiple employer bargaining from the asso- to withdraw negotiated agreement. ciation which had this He then sign demands from the union that he repeated refused practice At the union filed unfair labor length, contract. charges Board, with the National Labor Relations respondent’s sign refusal to the contract which found negotiated on his behalf the Association was had been (1) 8 and of (a)(5) §§ a violation of the National amended, 61 as 29 Act, 140-141, Stat. U. S. C. (1). 158(a)(5) The respondent Board ordered to §§ sign contract, prac- cease and desist from unfair labor post “[p]ay appropriate tices, notices, source fringe provided any benefits the above-described (1965). 14 contract.” 152 N. L. R. B. 9, Court Appeals enforced the Board’s order except required as it payment part benefits. That of the order, Appeals said, respondent Court “is an order to provisions out of the carry contract and is beyond power of the Board.” 386 2d 929, (1967). F. 933 Government and we sought granted certiorari as to this holding. U. S. 933 remedy

Believing provided by the Board was within we powers, judgment well reverse the Appeals. (c) Court of Act empowers Section adjudicates the Board when it an unfair labor practice to person issue “an order such requiring cease and desist Slate, Composition Roofers, Roofers Local United Tile and Damp Waterproof Workers Association. practice,

from such and to take such affirm- including employees ative action reinstatement of with or pay, policies without back as will effectuate the of this (c). grant C. This § Act.” Stat. U. S. power of remedial is a broad one. It does not authorize punitive “[m]aking whole for measures, workers practice losses suffered on account of an unfair labor part public policy of the vindication of the which the Phelps Dodge Corp. enforces.” simpler Back is one of the explicitly and more authorized attain remedies utilized to this end.2 practice

Here the unfair labor was the failure sign acknowledge the existence of a collective bargaining negoti- which had been *3 ated and concluded on dispute his behalf. There is no respondent Roofing that withdrew from the Contractors Association escape binding too late to the force of the agreement negotiated it had for him, supplanting previ- agreements ous in negotiated had been the same way.3 light in Nor, obligation bar- gaining in good sign reducing agreed faith to a contract NLRB, H. J. Heinz Co. v. terms to 311 writing, 514, U. S. argued (1941), respondent’s 524-526 is it that failure to sign agreement was not an practice. unfair labor The in judgment respects these is not now chal- lenged. remedy ordered Board included fringe direction benefits which would have employer signed paid been had the thereby recognized legal obligations his which had

2 generally 25, See Nathanson v. 344 U. S. 29-30 Note, Survey 38, Remedies, A of Labor 54 41-95 Va. L. Rev. 3Respondent past president Association, is a and thus bylaw negotiated by was with its that a familiar “labor binding upon Regular of this Committee shall be Members separately collectively Association ...” 360 bargaining This process. collective during

matured Dodge Phelps like is no more than the Act and cases plainly authorize. that order employer, brief, challenge in the con payment benefits reserved

ing the the Board into the enforcement of the tract inserts contrary policy bargaining agreement, collective Admittedly, and scheme of the statute.4 the Board has enforce plenary authority no administer and collec Those agreements tive contracts. are nor agreed mally upon usually enforced as the parties, grievance through procedures, and arbitration ulti mately by the courts. But the business of the Board, among things, adjudicate remedy other is to practices. authority Its do so is not “affected by any adjustment prevention other means of or may by. has been or be established agreement, law, or (a), § otherwise . . .” C. . Stat. (a). it has been Hence, § made clear that some authority circumstances the of the Board and the law of the contract are concurrent overlapping, regimes, pre-empting Ply neither the other. NLRB C & C v. Corp., (1967); Carey Westing wood S. U. Corp., house Electric 375 U. 268 (1964); S. Smith v. Assn., Evening News S. 197-198 Co., Local Teamsters v. Lucas Flour S. 95, 101, U. Arbitrators and principal n. courts are still the *4 4 payments question The fact the in here did not constitute employees direct to the is irrelevant in our view of this case. payments employees, Whether the were made to the who then con higher tributed them to union trust funds in the form of dues, union they passed straight or employer whether as here from the to the funds, trust just the final result is the same. And it is as much “effectuat[ing] policies in the interest of Act,” the of this and of making employees whole, require payments the to the in either case.

361 may interpretation,5 of contract sources even practice labor is unfair which an conduct proscribe such as remediable contract a breach it is also though Evening News v. Smith courts. by arbitration if may also, It (1962). 197-198 Assn., 195, S. 371 U. interpret practice, labor an unfair necessary adjudicate to bargaining of a collective the terms to effect give U. S. Plywood C Corp., 385 v. C & NLRB contract. (1967). ex Board is case, this on precisely

Bearing more an whether determine to by the Act invited pressly thereby faith and good bargain refused has employer aof “the execution resisting (5) (a)8§ violated if reached any agreement incorporating contract written 142, 61 Stat. (d), 8§ . .” party . . either requested U. S. v. J. Co. H. Heinz (d); § S. C. U. on trespassing not Board is 514, 524-526 negotiations whether inquires it territory when forbidden refused has employer bargain produced have has when honor, particularly to sign contract existence very recognize refused insists. he now on which the arbitration providing af Board’s is the contract the collective extent To this sign for refusal remedy effective an fair, and business. proper Congress 574, 564, Trilogy, U. S. Steelworkers Management remedy 301 of judicial § established pro of a 185, in lieu S. C. Act, § 61 Stat. itself a collective make breach posal to Cong., 1st 510, 80th Rep. No. R. Conf. practice. H. par Report asserts that “[o]nce House Conference

Sess., 41-42. enforcement bargaining a collective made ties have and not law processes usual left to the should that contract See Textile id., Board,” at 42. Labor Relations National LMRA (1957). Cf. Mills, Lincoln Workers 171. 152, 29 TJ. S. C. § 201, 61 Stat. § *5 Firing employee an for union membership may be a breach of contract open but whether it is arbitration, or not, it is practice also unfair labor may which remedied reinstatement with back (c) under 10§ even though the Board's very order mandates the com- pensation reserved the contract. Cf. NLRB v. Great Trailers, Inc., Dane 388 U. 26S. (1967); Mastro Plastics Corp. NLRB, S. (1956); Wallace Corp. v. NLRB, 323 U. 248 (1944). S.

The case before us little, is 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 it adjudicated, could be remedied by a Board order requiring payment of fringe those bene- fits which would paid have been had the signed acknowledged had duly been negotiated on his behalf. The judgment of the Court Appeals is reversed.

It is so ordered. Mr. Justice Black in the concurs reversal of the Court Appeals’ judgment, but he would direct that the cause be remanded to the Board for it to determine whether to submit the case arbitration in accord with the contract.

Mr. Justice Douglas, dissenting.

There is a surface logic what the does today: Court If the may award back pay (which computed from the collective bargaining agreement), it should be allowed to award benefits, whose character and amount are also determined by the collective bargaining agreement. An award of pay, back however, is an ex- press part of the legislative grant of authority,1 while the (c) Sec. 10 the Act Board, authorizes the when it finds an practice, to issue “an order requiring person such cease and from desist such unfair labor practice, and to take such

award of fringe benefits is not. is, of course, That not a *6 complete answer, Congress did make not an exhaus- tive catalogue of devices used to thwart the Act, but largely left to the Board “the relation of remedy to policy.” Phelps Dodge See Corp. v. 313 U. S. 177, 194.

What distinguishes the present case is the fact that fringe benefits are products not of a computer of an process arbitral to which Congress given has strong support.2 See Textile Workers v. Lincoln Mills, 353 U. S. 448.

The provision for arbitration is in a sense competitive with provision empowering the Board to remedy an practice. labor It is indeed an integral part of the collective agreement providing procedure generis sui for resolving grievances that arise.

There were proposals, as we noted Dowd Box Co. v. Courtney, 368 U. S. 502, 510-511, make a breach of a collective bargaining agreement an unfair prac- tice subject jurisdiction of the National Labor Relations Board. But proposals those never gained the necessary support, Congress deciding that par- “[o]nee action including affirmative employees reinstatement of with or with- out back pay, as will policies effectuate the of this Act.” 2See, g., e. Aaron, “On Looking First into the Lincoln Mills Deci sion,” in Arbitration and the Law (Proceedings, Academy National of Arbitrators) (J. McKelvey 1959); ed. & Wellington, Legis Bickel Purpose lative and the Judicial Process: The Lincoln Case, Mills 71 Harv. L. Rev. 1 (1957); Bunn, Lincoln Mills and the Jurisdic tion to Enforce Bargaining Collective Agreements, 43 Va. L. Rev. (1957); Cox, Upon Reflections Arbitration, Labor 72 Harv. L. Rev. (1959); Cox, Legal Nature Collective Bar gaining Agreements, 57 Mich. (1958); L. Rev. 1 Feinsinger, Enforce ment of Agreements Labor New Era In Bargaining, Collective —A 43 Va. L. Rev. 1261 Gregory, The Law of the Collective Agreement, 57 Mich. L. Rev. 635 Jenkins, Impact Lincoln Mills on the National Labor Board, Relations 6 U. C. L. A. L. Rev. 355 en- bargaining contract a collective made ties have usual left to the should that contract forcement Rela- the National and not to law processes Cong., 510, 80th Rep. No. Conf. H. R. Board.” tions Courtney, Box Co. in Dowd 42, quoted Sess., 1st in 301§ reflected policy is that It at 511. supra, Act, Management the Labor That Mills, at 452. S., in Lincoln was before us griev- to arbitrate exchange was to policy Id., 455. agreement. at for a no-strike disputes ance is either the Board process which is not a Arbitration are arbiters Those who to follow. or equipped qualified industry and particular in a special qualifications have *7 shop.3 common law come to know govern- of or branch any agency of jurisdiction The expansion. and impetus growth ment has built-in narrowly powers restrict department does a Seldom is to tendency The self-denying attitude. assume a organism grows The powers broadly. express construe To authority. of little-noticed extensions subtle and predict- as phenomenon is of this government students “laws.”4 so-called of other the operation able as tendency part their exception; no are Courts in their seen authority of their was easy find extensions United agencies. See with administrative early contest examples 183, 191. Recent Morgan, 307 U. S. States v. the National g., Christensen, Arbitration, Section See, e. Kovarsky, (1962); Rev. 411 Act, 37 N. Y. U. L. Labor Overruling of Pre-emption: The and Federal Arbitration (1963); Laboratories, Smith 47 Minn. L. Rev. Black v. Cutter Emerging Impact Federal Grievance Jones, Law The & Parties, 52 L. Rev. 831 Judges, Arbitrators, and Va. on Arbitration Dispute Supreme Court and Labor (1966); Jones, Smith & Law, L. Rev. Emerging Federal 63 Mich. Arbitration: New of Grievance (1965); Comment, Law Arbitration: Common Rev. 494 Bottles?, 58 Nw. U. L. in Old Wine Parkinson, Parkinson’s Law C. N. exist in very this field of arbitration with which we are concerned here. We noted Steelworkers v. Warrior & Co., 363 how some courts were en- being Gulf ticed to construe arbitration clauses as permitting or not permitting arbitration certain disputes kinds of then becoming entangled the arbitral process, though it was for the arbiters, Id., not for them. at 585. We relegated the courts to their field, narrow arbitra- leaving tion expertise.5 new

An arbiter is not of course “to dispense free his own brand of industrial justice” but is admonished “to reach a fair solution of a problem” within the spirit letter and of the collective bargaining agreement. Steelworkers v. Enterprise Corp., 363 U. S. past 597. The practices of the parties, as well as the provisions contractual them- selves, guidelines.6 are the Local v. Philadelphia Orchestra, 252 Supp. F. 787. The agreement to arbitrate is, moreover, more a contract; than it is a generalized Aaron,

5 See Arbitration in the Federal Courts: Aftermath of Trilogy, 9 U. C. L. A. (1962); L. Rev. 360 Davey, The Supreme Court and Musings Arbitration: The Arbitrator, Notre Dame Law. Fleming, Some Observations on Contract Grievances Before and Arbitrators, Courts 15 Stan. L. Rev. Gregory, Enforcement of Agreements by Collective Arbitration, 48 Va. L. Rev. 883 (1962); Jones, The Name of the *8 Game is Decision—Some “Arbitrability” Reflections on and “Au thority” in Arbitration, Labor 46 Texas (1968); L. Rev. 865 Mayer, Relations, Labor 1961: The Steelworkers Cases Re-examined, 13 Lab. L. 213 (1962); Meltzer, J. Supreme Court, Arbitrability Bargaining, Collective 28 U. Chi. L. Rev. 464 Jones & Smith, Management Appraisals Labor and Criticisms of the Report A Arbitration Process: with Comments, 62 Mich. L. Rev. (1964). Treece, See Past Practice Its Relationship Specific Con Language tract in the Arbitration of Disputes, Grievance 40 U. Colo. seq. L. (1968). Rev. 360 et Domke, Arbitration, 36 N. Y. U. L. Rev. 545 Fleming, Reflections on the Nature Labor Arbitration, 61 (1963). Mich. Rev. 1245 L. “ the ‘common in only light that understood code is the con and furnishes implements shop law the ” & Warrior Steelworkers agreement.’ text of the “a called Co., It is sometimes supra, at 580. Gulf parties arbitrator by effort cooperative 7 There problem.” solution develop a workable had who has Judge Hays, view. jaundiced more is a has stated: field, experience considerable . are de- awards . . of arbitration “A proportion or of the the evidence the basis of not on cided in a considerations, proper or other likely opinion makes it in the arbitrator’s way which arbitration cases.” other will be hired for that he A View Dissenting Labor Arbitration: P. Hays, (1966).8 taken, it is clear process may be view of the Whatever bar- under a collective benefits determining fringe it can computer. But job no for a gaining agreement Board makes the Labor than that when hardly more remedial order. insertion computations for shop would show “common law” What practices” “past what benefits, these covering fair award, what “a of an on the amount might reflect an arbi- to be in problem might seem solution” knows. These are no one reference, frame of tration parties under chosen arbiters, matters Board, an not for the agreement, collective Lincoln Mills. envisioned system alien to Arbitration, 20 Stan. L. Aaron, Intervention in Judicial 41, 55 Rev. Law, Ideology, and Labor Meltzer, About Ruminations But see L. Rev. 545 Arbitration, 34 Chi. U.