National Labor Relations Board v. Strong/Dissent Douglas

by William O. Douglas

United States Supreme Court

393 U.S. 357

National Labor Relations Board  v.  Strong

 Argued: Dec. 10, 1968. --- Decided: Jan 15, 1969

Mr. Justice DOUGLAS, dissenting.

There is a surface logic in what the Court does today: If the Board may award back pay (which is computed from the collective bargaining agreement), it should be allowed to award fringe benefits, whose character and amount are also determined by the collective bargaining agreement. An award of back pay, however, is an express part of the legislative grant, of authority, ^[1] while the award of fringe benefits is not. That is, of course, not a complete answer, for Congress did not make an exhaustive catalogue of devices used to thwart the Act, but largely left to the Board 'the relation of remedy to policy.' See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271.

What distinguishes the present case is the fact that fringe benefits are not products of a computer but of an arbitral process to which Congress has given strong support. ^[2] See Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.

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

There were proposals, as we noted in Dowd Box Co. v. Courtney, 368 U.S. 502, 510-511, 82 S.Ct. 519, 524, 7 L.Ed.2d 483, to make a breach of a collective bargaining agreement an unfair labor practive subject to the jurisdiction of the National Labor Relations Board. But those proposals never gained the necessary support, Congress deciding that '(o)nce parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.' H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 42, quoted in Dowd Box Co. v. Courtney, supra, at 511, 82 S.Ct. at 524. It is that policy that is reflected in § 301 of the Labor Management Relations Act, 1947, which was before us in Lincoln Mills, 353 U.S. at 452, 77 S.Ct. at 915. That policy was to exchange an agreement to arbitrate grievance disputes for a no-strike agreement. Id., at 455, 77 S.Ct. at 917.

Arbitration is not a process which the Board is either equipped or qualified to follow. Those who are arbiters have special qualifications in a particular industry and come to know the common law of the shop. ^[3]

The jurisdiction of any agency or branch of government has a built-in impetus for growth and expansion. Seldom does a department restrict its powers narrowly and assume a self-denying attitude. The tendency is to construe express powers broadly. The organism grows by subtle and little-noticed extensions of authority. To students of government this phenomenon is as predictable as the operation of other so-called 'laws.' ^[4]

Courts are no exception; and part of their tendency to find easy extensions of their authority was seen in their early contest with administrative agencies. See United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211. Recent examples exist in this very field of arbitration with which we are concerned here. We noted in United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409, how some courts were being enticed to construe arbitration clauses as permitting or not permitting arbitration of certain kinds of disputes and then becoming entangled in the arbitral process, though it was for the arbiters, not for them. Id., at 585, 80 S.Ct. at 1354. We relegated the courts to their narrow field, leaving arbitration to the new expertise. ^[5]

An arbiter is not of course free 'to dispense his own brand of industrial justice' but is admonished 'to reach a fair solution of a problem' within the letter and spirit of the collective bargaining agreement. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424. The past practices of the parties, as well as the contractual provisions themselves, are the guidelines. ^[6] Local 77, American Federation of Musicians, AFL-CIO v. Philadelphia Orchestra, D.C., 252 F.Supp. 787. The agreement to arbitrate is, moreover, more than a contract; it is a generalized code that is understood only in light of the "common law of the shop which implements and furnishes the context of the agreement." Steelworkers v. Warrior & Gulf Nav. Co., supra, 363 U.S., at 580, 80 S.Ct., at 1351, 4 L.Ed.2d 1409. It is sometimes called 'a cooperative effort by the parties and the arbitrator to develop a workable solution to the problem.' ^[7] There is a more jaundiced view. Judge Hays, who has had considerable experience in the field, has stated:

'A proportion of arbitration awards * * * are decided not on the basis of the evidence or of the contract or other proper considerations, but in a way which in the arbitrator's opinion makes it likely that he will be hired for other arbitration cases.' P. Hays, Labor Arbitration: A Dissenting View 112 (1966). ^[8]

Whatever view of the process may be taken, it is clear that determining fringe benefits under a collective bargaining agreement is no job for a computer. But it can be hardly more than that when the Labor Board makes its computations for insertion in the remedial order.

What the 'common law' of the shop would show covering these fringe benefits, what 'past practices' might reflect on the amount of an award, what 'a fair solution' of the problem might seem to be in an arbitration frame of reference, no one knows. These are matters for arbiters, chosen by the parties under the collective agreement, not for the Board, an alien to the system envisioned by Lincoln Mills.

Notes

1. Sec. 10(c) of the Act authorizes the Board, when it finds an unfair labor practice, to issue 'an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.'
2. See, e.g., Aaron, 'On First Looking into the Lincoln Mills Decision,' in Arbitration and the Law (Proceedings, National Academy of Arbitrators) (J. McKelvey ed. 1959); Bickel & Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv.L.Rev. 1 (1957); Bunn, Lincoln Mills and the Jurisdiction to Enforce Collective Bargaining Agreements, 43 Va.L.Rev. 1247 (1957); Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482 (1959); Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich.L.Rev. 1 (1958); Feinsinger, Enforcement of Labor Agreements-A New Era In Collective Bargaining, 43 Val.L.Rev. 1261 (1957); Gregory, The Law of the Collective Agreement, 57 Mich.L.Rev. 635 (1959); Jenkins, The Impact of Lincoln Mills on the National Labor Relations Board, 6 U.C.L.A.L.Rev. 355 (1959).
3. See, e.g., Christensen, Arbitration, Section 301, and the National Labor Relations Act, 37 N.Y.U.L.Rev. 411 (1962); Kovarsky, Labor Arbitration and Federal Pre-emption: The Overruling of Black v. Cutter Laboratories, 47 Minn.L.Rev. 531 (1963); Smith & Jones, The Impact of the Emerging Federal Law of Grievance Arbitration on Judges, Arbitrators, and Parties, 52 Va.L.Rev. 831 (1966); Smith & Jones, The Supreme Court and Labor Dispute Arbitration: The Emerging Federal Law, 63 Mich.L.Rev. 751 (1965); Comment, Common Law of Grievance Arbitration: New Wine in Old Bottles?, 58 Nw.U.L.Rev. 494 (1963).
4. C. N. Parkinson, Parkinson's Law (1957).
5. See Aaron, Arbitration in the Federal Courts: Aftermath of the Trilogy, 9 U.C.L.A.L.Rev. 360 (1962); Davey, The Supreme Court and Arbitration: The Musings of an Arbitrator, 36 Notre Dame Law. 138 (1961); Fleming, Some Observations on Contract Grievances Before Courts and Arbitrators, 15 Stan.L.Rev. 595 (1963); Gregory, Enforcement of Collective Agreements by Arbitration, 48 Va.L.Rev. 883 (1962); Jones, The Name of the Game is Decision-Some Reflections on 'Arbitrability' and 'Authority' in Labor Arbitration, 46 Texas L.Rev. 865 (1968); Mayer, Labor Relations, 1961: The Steelworkers Cases Re-examined, 13 Lab.L.J. 213 (1962); Meltzer, The Supreme Court, Arbitrability and Collective Bargaining, 28 U.Chi.L.Rev. 464 (1961); Jones & Smith, Management and Labor Appraisals and Criticisms of the Arbitration Process: A Report with Comments, 62 Mich.L.Rev. 1115 (1964).
6. See Treece, Past Practice and Its Relationship to Specific Contract Language in the Arbitration of Grievance Disputes, 40 U.Colo.L.Rev. 358, 360 et seq. (1968). Domke, Arbitration, 36 N.Y.U.L.Rev. 545 (1961); Fleming, Reflections on the Nature of Labor Arbitration, 61 Mich.L.Rev. 1245 (1963).
7. Aaron, Judicial Intervention in Labor Arbitration, 20 Stan.L.Rev. 41, 55 (1967).
8. But see Meltzer, Ruminations About Idealogy, Law, and Labor Arbitration, 34 U.Chi.L.Rev. 545 (1967).