RADIO OFFICERS’ UNION OF THE COMMERCIAL TELEGRAPHERS UNION, AFL, v. NATIONAL LABOR RELATIONS BOARD.
NO. 5.
Supreme Court of the United States
February 1, 1954
November 9, 1953
347 U.S. 17
Argued January 8, 1953.
Bernard Dunau argued the cause for the National Labor Relations Board. With him on the briefs on the original argument were Walter J. Cummings, Jr., then Solicitor General, George J. Bott, David P. Findling, Mozart G. Ratner, Elizabeth W. Weston and Louis Schwartz in Nos. 5 and 6, and Acting Solicitor General Stern, Mr. Bott, Mr. Findling, Dominick L. Manoli and Frederick U. Reel in No. 7. With him on the briefs on the reargument were Acting Solicitor General Stern, Mr. Bott, Mr. Findling and Mr. Manoli.
Julius Kass argued the cause and filed the briefs for petitioner in No. 7.
John J. Manning argued the cause for respondents in No. 6. With him on the brief was Clif Langsdale.
Stephen C. Vladeck filed a brief for the Newspaper and Mail Deliverers’ Union of New York and Vicinity, as amicus curiae.
MR. JUSTICE REED delivered the opinion of the Court.
The necessity for resolution of conflicting interpretations by Courts of Appeals of § 8 (a) (3) of the National Labor Relations Act, as amended, 61 Stat. 136, 65 Stat. 601,
Teamsters. Upon the basis of a charge filed by Frank Boston, a truck driver employed by Byers Transportation Company and a member of Local Union No. 41, International Brotherhood of Teamsters, A. F. L., the General Counsel of the National Labor Relations Board issued a complaint against the union alleging violation
The Board found that the union, as exclusive bargaining representative of the teamsters in the company‘s employ, had in 1949 negotiated a collective-bargaining agreement with the company which governed working conditions on all over-the-road operations of the company.15 This agreement established a seniority system under which the union was to furnish periodically to the company a seniority list and provided that “any controversy over the seniority standing of any employee on this list shall be referred to the Union for settlement.” Union security provisions of the agreement were not effective due to lack of the authorization then required by § 8 (a) (3) of the Act.16 The seniority list therefore included both union members and nonmembers. Each
The bylaws of Teamsters Local Union No. 41 provided that “any member, under contract, one month in arrears for dues shall forfeit all seniority rights. . . .”17 A member‘s dues were payable on the first day of each month, and he was deemed “in arrears” for any month‘s dues on the second day of the following month. Boston did not pay his dues for June 1950 until July 5, 1950. When the union transmitted a new seniority list to the company on the following July 15, Boston, who had previously been eighteenth on the list, was reduced to fifty-fourth, the bottom position on the list. As a result of such reduction Boston was denied driving assignments he would otherwise have obtained and for which he would have received compensation.
Upon these facts a majority of the Board found that the union had violated §§ 8 (b) (1) (A) and 8 (b) (2) of the Act. As to the former, the Board held that the union‘s reduction of Boston‘s seniority restrained and coerced him in the exercise of his right to refrain from assisting a labor organization guaranteed by § 7.18 The Board held that, “absent a valid contractual union-security provision, Boston had the absolute protected right under the Act to determine how he would handle his union affairs without risking any impairment of his em-
The Board entered an order requiring the union to cease and desist from the unfair labor practices found and from related conduct; to notify Boston and the company that the union withdraws its request for the reduction of Boston‘s seniority and that it requests the company to offer to restore Boston to his former status; to make Boston whole for any losses of pay resulting from the discrimination; and to post appropriate notices of compliance.
Radio Officers. Upon the basis of a charge filed by William Christian Fowler, a member of The Radio Officers’ Union of the Commercial Telegraphers Union, A. F. L., the General Counsel of the National Labor Relations Board issued a complaint against the union alleging violation of §§ 8 (b) (1) (A) and 8 (b) (2) of the Act by causing the A. H. Bull Steamship Company to discriminatorily refuse on two occasions to employ Fowler. No complaint was issued against the company because
The Board found that at the time the transactions giving rise to this case occurred the union had a collective-bargaining contract with a number of steamship concerns including the Bull Steamship Company covering the employment of radio officers on ships of the contracting companies. Pertinent provisions in this contract are:
“Section 1. The Company agrees when vacancies occur necessitating the employment of Radio Officers, to select such Radio Officers who are members of the Union in good standing, when available, on vessels covered by this Agreement, provided such members are in the opinion of the Company qualified to fill such vacancies.”
“Section 6. The Company shall have the right of free selection of all its Radio Officers and when members of the Union are transferred, promoted, or hired the Company agrees to take appropriate measures to assure that such members are in good standing, and the Union agrees to grant all members of the Union in good standing the necessary ‘clearance’ for the position to which the Radio Officer has been assigned. If a member is not in good standing, the Union will so notify the Company in writing.”
The union‘s contention that this contract provided for a hiring hall under which complete control over selection of radio officers to be hired by any company was given to the union was rejected by the Trial Examiner and by a majority of the Board. Such an agreement would have
The Board also found that: On February 24, 1948, the company telegraphed an offer of a job as radio officer on the company‘s ship S. S. Frances to Fowler, who had often previously been employed by the company; Fowler had notified the company that he would accept the job; the company then informed Kozel, the radio officer on the previous voyage of the ship, that he was being replaced by “a man with senior service in the company“; Fowler reported to the Frances without seeking clearance from the union and Kozel reported such action to the union; the union secretary wired Fowler that he had been suspended from membership for “bumping” another member and taking a job without clearance and notified the company that Fowler was not in good standing in the union; the union secretary had no authority to effect such a suspension, the suspension was void and Fowler was in good standing in the union at all times material in this case;25 express requests to the union for clearance
Upon these facts a majority of the Board found that the union had violated §§ 8 (b) (1) (A) and 8 (b) (2). The Board rejected the union‘s defense that the union security provision of the contract, preferential hiring for members in good standing, immunized the union‘s action. They found that Fowler was in good standing at all times notwithstanding his suspension by the union secretary, and that conformity with the union‘s hiring-hall rules and procedures was not also required by the contract. Thus the Board concluded that the union, by refusing to clear Fowler in both February and April, restrained and coerced Fowler in his statutory right to refrain from observance of the union‘s rules, and caused the company to discriminate against Fowler by denying him employ-
exceed that of the general chairman, who in all instances was required by specific provisions of the bylaws to advise Fowler of his offense and to afford him an opportunity to conform with union rules before suspending him. It is clear that Fowler was not given such opportunity; his purported suspension was therefore ineffectual. . . .”
The power of the Board to make this finding is not challenged here.
The Board entered an order requiring the union to cease and desist from the unfair labor practices found and from related conduct; to notify Fowler and the company that it withdraws objection to his employment and requests the company to offer him employment as a radio officer; to make Fowler whole for any losses of pay resulting from the discrimination, and to post appropriate notices of compliance.
The Court of Appeals for the Second Circuit affirmed the Board‘s findings and conclusions and granted the Board‘s petition for enforcement of its order.26 The court agreed that the provisions of the contract “plainly give the company the right to select the man it desires to hire, and require the union to grant ‘clearance’ if the man
The Board found that in 1946 the company, engaged in the wholesale distribution and delivery of newspapers
The Board concluded that, since nothing in the supplementary agreement prohibited equal payment to nonunion employees, “the contract affords no defense to the allegation that the Respondent unlawfully engaged in disparate treatment of employees on the basis of union membership or lack of it . . . ,”34 and held that the company had violated the Act as alleged. The company‘s arguments that its actions had not violated § 8 (a) (3) because “the record is barren of any evidence that the discriminatory treatment of non-union employes encouraged them to join the union” or had such purpose, and that there could be no such evidence because all the nonunion employees had previously sought membership in the union and been denied because of the union‘s closed policy, were rejected. The Board adopted the Trial Examiner‘s finding that “it is obvious that the discrimination with respect to retroactive wages and vacation benefits had
The Court of Appeals for the Second Circuit, upon the Board‘s petition, granted enforcement of all parts of the order pertinent here.35 On the issue of the legality of the discrimination, the court distinguished Labor Board v. Reliable Newspaper Delivery, Inc., 187 F. 2d 547, involving actions closely paralleling the company‘s here by another company dealing with the same union, stating, “there discrimination resulted from what the court considered the entirely legal action of the minority union in asking special benefits for its members only. The union made no pretense of representing the majority of employees or of being the exclusive bargaining agent in the plant. The other non-union employees, reasoned the Court, were quite able to elect their own representative and ask for similar benefits. Not so here. The union here represented the majority of employees and was the exclusive bargaining agent for the plant. Accordingly, it could
“discriminatory conduct, such as that practiced here, is inherently conducive to increased union membership. In this respect, there can be little doubt that it ‘encourages’ union membership, by increasing the number of workers who would like to join and/or their quantum of desire. It may well be that the union, for reasons of its own, does not want new members at the time of the employer‘s violations and will reject all applicants. But the fact remains that these rejected applicants have been, and will continue to be, ‘encouraged,’ by the discriminatory benefits, in their desire for membership. This backlog of desire may well, as the Board argues, result in action by non-members to ‘seek to break down membership barriers by any one of a number of steps, ranging from bribery to legal action.’ A union‘s internal politics are by no means static; changes in union entrance rules may come at any time. If and when the barriers are let down, among the new and now successful applicants will almost surely be large groups of workers previously ‘encouraged’ by the employer‘s illegal discrimination. We do not believe that, if the union-encouraging effect of discriminatory treatment is not felt immediately, the employer must be allowed to escape altogether. If there is a reasonable likelihood that the effects may be felt years later, then a reasonable interpretation of the Act demands that the employer be deemed a violator.” 197 F. 2d, at 722-723.
We granted the company‘s petition for certiorari.36
The language employed by Congress in enacting the heart of
In past cases we have been called upon to clarify the terms “discrimination” and “membership in any labor organization.” Discrimination is not contested in these cases: involuntary reduction of seniority, refusal to hire for an available job, and disparate wage treatment are clearly discriminatory. But the scope of the phrase “membership in any labor organization” is in issue here. Subject to limitations,38 we have held that phrase to in
Similar principles govern the interpretation of union membership where encouragement is alleged. The policy of the Act is to insulate employees’ jobs from their organizational rights.40 Thus
From the foregoing it is clear that the Eighth Circuit too restrictively interpreted the term “membership” in Teamsters. Boston was discriminated against by his employer because he was delinquent in a union obligation. Thus he was denied employment to which he was otherwise entitled, for no reason other than his tardy payment of union dues. The union caused this discrimination by applying a rule apparently aimed at encouraging prompt payment of dues. The union‘s action was not sanctioned by a valid union security contract, and, in any event, the union did not choose to terminate Boston‘s membership for his delinquency. Thus the union by requesting such discrimination, and the employer by submitting to such an illegal request, deprived Boston of the right guaranteed by the Act to join in or abstain from union activities without thereby affecting his job. A fortiori the Second Circuit correctly concluded in Radio Officers that such encouragement to remain in good standing in a union is proscribed. Thus that union in causing the employer to discriminate against Fowler by denying him employment in order to coerce Fowler into following the union‘s desired hiring practices deprived Fowler of a protected right.
II. A.—NECESSITY FOR PROVING EMPLOYER‘S MOTIVE.
The language of
The relevance of the motivation of the employer in such discrimination has been consistently recognized under both
That Congress intended the employer‘s purpose in discriminating to be controlling is clear. The Senate Report on the Wagner Act said: “Of course nothing in the bill prevents an employer from discharging a man for incompetence; from advancing him for special aptitude; or from demoting him for failure to perform.”49 Senator Wagner spoke of
B.—PROOF OF MOTIVE.
But it is also clear that specific evidence of intent to encourage or discourage is not an indispensable element of proof of violation of
In Gaynor, the Second Circuit also properly applied this principle. The court there held that disparate wage treatment of employees based solely on union membership status is “inherently conducive to increased union membership.” In holding that a natural consequence of discrimination, based solely on union membership or lack thereof, is discouragement or encouragement of membership in such union, the court merely recognized a fact of common experience—that the desire of employees to unionize is directly proportional to the advantages thought to be obtained from such action. No more striking example of discrimination so foreseeably causing employee response as to obviate the need for any other proof of intent is apparent than the payment of different wages to union employees doing a job than to nonunion employees doing the same job. As noted above, the House Report on
In Gaynor it was conceded that the sole criterion for extra payments was union membership, and the vacation payments were admittedly gratuitous. The wage differential payments, on the other hand, were based upon the 1947 supplementary agreement which the company below contended was negotiated solely in behalf of union members. However, the court below held that the union was exclusive bargaining agent for both union and nonunion employees. The company has not challenged this
The union‘s representative status obviously does not effect the legality of the gratuitous payment. According to the reasoning of the Second Circuit, however, disparate payments based on contract are illegal only when the union, as bargaining agent for both union and nonunion employees, betrays its trust and obtains special benefits for the union members. That court considered such action unfair because such employees are not in a position to protect their own interests. Thus, it reasoned, if a union bargains only for its own members, it is legal for such union to cause an employer to give, and for such employer to give, special benefits to the members of the union for if nonmembers are aggrieved they are free to bargain for similar benefits for themselves.
We express no opinion as to the legality of disparate payments where the union is not exclusive bargaining agent, since that case is not before us. We do hold that in the circumstances of this case, the union being exclusive bargaining agent for both member and nonmember employees, the employer could not, without violating
III. POWER OF BOARD TO DRAW INFERENCES.
Petitioners in Gaynor and Radio Officers contend that the Board‘s orders in these cases should not have been enforced by the Second Circuit because the records do not include “independent proof that encouragement of Union membership actually occurred.” The Eighth Circuit subscribed to this view that such independent proof is required in Teamsters when it denied enforcement of the Board‘s order in that proceeding on the ground that it was not supported by substantial evidence of encouragement. The Board argues that actual encouragement need not be proved but that a tendency to encourage is sufficient, and “such tendency is sufficiently established if its existence may reasonably be inferred from the character of the discrimination.”
We considered this problem in the Republic Aviation case. To the contention that “there must be evidence before the Board to show that the rules and orders of the employers interfered with and discouraged union organization in the circumstances and situation of each company,” we replied that the statutory plan for an adversary proceeding “does not go beyond the necessity for the production of evidential facts, however, and compel evidence as to the results which may flow from such facts. . . . An administrative agency with power after hearings to
It is argued, however, that these cases ceased to be good law under the Taft-Hartley amendments. The House Report on their version of
In Universal Camera Corp. v. Labor Board, 340 U. S. 474, we carefully considered this legislative history and interpreted it to express dissatisfaction with too restricted application of the “substantial evidence” test of the Wagner Act. We noted, however, that sufficiency of evidence to support findings of fact was not involved in the Republic Aviation case, and stated that the amendment was not “intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” There is nothing in the language of the amendment itself that suggests denial to the Board of power to draw reasonable inferences. It is inconceivable that the authors of the reports intended such a result, for a fact-finding body must have some power to decide which inferences to draw and which to reject. We therefore conclude that insofar as the power to draw reasonable inferences is concerned, Taft-Hartley did not alter prior law.
The Board relies heavily upon the House Report on
Encouragement and discouragement are “subtle things” requiring “a high degree of introspective perception.” Cf. Labor Board v. Donnelly Garment Co., 330 U. S. 219, 231. But, as noted above, it is common experience that the desire of employees to unionize is raised or lowered by the advantages thought to be attained by such action. Moreover, the Act does not require that the employees discriminated against be the ones encouraged for purposes of violations of
Obviously, it would be gross inconsistency to hold that an inherent effect of certain discrimination is encouragement of union membership, but that the Board may not reasonably infer such encouragement. We have held that a natural result of the disparate wage treatment in Gaynor was encouragement of union membership; thus it would be unreasonable to draw any inference other than that encouragement would result from such action. The company complains that it could have disproved this natural result if allowed to prove that Loner, the employee who filed the charges against it, had previously applied for and been denied membership in the union. But it is clear that such evidence would not have rebutted the inference: not only would it have failed to disprove an increase in desire on the part of other employees, union members or nonmembers, to join or retain good standing in the union, but it would not have shown lack of encouragement of Loner. In rejecting this argument the
The circumstances in Radio Officers and Teamsters are nearly identical. In each case the employer discriminated upon the instigation of the union. The purposes of the unions in causing such discrimination clearly were to encourage members to perform obligations or supposed obligations of membership. Obviously, the unions would not have invoked such a sanction had they not considered it an effective method of coercing compliance with union obligations or practices. Both Boston and Fowler were denied jobs by employers solely because of the unions’ actions. Since encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of a union, those employers must be presumed to have intended such encouragement. It follows that it was eminently reasonable for the Board to infer encouragement of union membership, and the Eighth Circuit erred in holding encouragement not proved.
IV. SANCTION AGAINST UNION UNDER § 8 (b) (2) .
Section 8 (b) (2) was added to the National Labor Relations Act by the Taft-Hartley amendments in 1947. It provides that “it shall be an unfair labor practice for a labor organization or its agents . . . to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or
We find no support for these arguments in the Act. No such limitation is contained in the language of
Nor does the absence of joinder of the employer preclude entry of a back-pay order against the union. The union cites in support of its position the language of
From the foregoing it follows that:
The Radio Officers’ Union v. Labor Board is affirmed.
Labor Board v. International Brotherhood of Teamsters is reversed.
Gaynor News Co. v. Labor Board is affirmed.
No. 5, affirmed.
No. 6, reversed.
No. 7, affirmed.
MR. JUSTICE FRANKFURTER, concurring.
In construing an ambiguous provision of a regulatory measure like the Taft-Hartley Act, a decision can seldom avoid leaving more or less discretion to the agency primarily charged with administering the statute. Since guidance in the exercise of this discretion by the Labor Board, and not merely guidance for litigants, thus becomes a function of the Court‘s opinion, it is doubly necessary to define the scope of our ruling as explicitly as possible.
The lower courts have given conflicting interpretations to the phrase, “by discrimination . . . to encourage or discourage membership in any labor organization,” contained in
The phrase in its relevant setting is susceptible of alternative constructions of decisively different scope:
(a) On the basis of the employer‘s disparate treatment of his employees standing alone, or as supplemented by evidence of the particular circumstances under which the employer acted, it is open for
(b) Even though the evidence of disparate treatment is sufficient to warrant the Board‘s conclusion set forth in (a), there must be a specific finding by the Board in all cases that the actual aim of the employer was to encourage or discourage union membership.
I think (a) is the correct interpretation. In many cases a conclusion by the Board that the employer‘s acts are likely to help or hurt a union will be so compelling that a further and separate finding characterizing the employer‘s state of mind would be an unnecessary and fictive formality. In such a case the employer may fairly be judged by his acts and the inferences to be drawn from them.
Of course, there will be cases in which the circumstances under which the employer acted serve to rebut any inference that might be drawn from his acts of alleged discrimination standing alone. For example, concededly a raise given only to union members is prima facie suspect; but the employer, by introducing other facts, may be able to show that the raise was so patently referable to other considerations, unrelated to his views on unions and within his allowable freedom of action, that the Board could not reasonably have concluded that his conduct would encourage or discourage union membership.
In sum, any inference that may be drawn from the employer‘s alleged discriminatory acts is just one element of evidence which may or may not be sufficient, without more, to show a violation. But that should not obscure the fact that this inference may be bolstered or rebutted by other evidence which may be adduced, and which the Board must take into consideration. The Board‘s task is
Since the issue which the Board thus has to decide involves pre-eminently an exercise of judgment on matters peculiarly within its special competence, little room will be left for judicial review. See Universal Camera Corp. v. Labor Board, 340 U. S. 474, 488.
What I have written and the Court‘s opinion, as I read it, are not in disagreement. In any event, I concur in its judgment.
MR. JUSTICE BURTON and MR. JUSTICE MINTON, having joined in the opinion of the Court, also join this opinion.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.
I.
No. 7—The Gaynor Case.—Eighteen years ago the language considered here became a part of what is now known as
I think the Court‘s new interpretation of
The Board has been careful in
they were supported by substantial evidence.4 I think the Section should not at this late date be held to penalize an employer for using his judgment in fixing working conditions unless he discriminates among employees in order to strengthen or weaken a union for his own advantage. For this reason, I would not sustain the Board‘s holding that Gaynor violated
II.
Nos. 5 and 6—The Radio Officers and Teamsters Cases.—In these cases the Board found that the Radio Officers and Teamsters unions had violated
Notes
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective-bargaining unit covered by such agreement when made [; and (ii) if, following the most recent election held as provided in section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement:] and has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with sections 9 (f), (g), (h), and (ii) unless following an election held as provided in section 9 (e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; . . . .”
Section 8 (a) (3) was enacted as part of the Taft-Hartley Act, 61 Stat. 136, in 1947, and amended in 1951, 65 Stat. 601. Provisions added by the 1951 amendment are in italics; provisions eliminated in 1951 are in brackets. This section derived from § 8 (3) of the 1935 Wagner Act, 49 Stat. 452,
“(b) It shall be an unfair labor practice for a labor organization or its agents—
“(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; . . . .”
“(a) Clarification of the above paragraph: On the second day of the second month a member becomes in arrears with his dues.”
The original charge filed on February 3, 1949, alleged violation only of §§ 8 (a) (1) and (3) by the above action relative to Loner between July and October 1948. This charge was amended on June 13, 1950, to allege violation of §§ 8 (a) (1) and (2) by executing the October 1948 contract with the illegal union security clause. The complaint issued by the General Counsel on the same day contained all of these allegations and alleged that the discriminatory treatment extended to all nonunion employees. The company contends that inclusion of such employees who did not file charges is prohibited by the six-month statute of limitations period provided in
The Board found, however, that the “evidence indicates that the Respondent had contracted to make retroactive wage payments to the employees covered by the original contract . . . .” The Board also adopted the Trial Examiner‘s finding that, regardless of the status of the wage payment, the retroactive vacation payments were entirely voluntary.