Amicus Curiae Brief — Chemical Workers v. Pittsburgh Plate Glass Co.
Supreme Court brief1971
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LABOR RELATION
L DIVISION, et.
10. THE
ONAL
‘PITTSBURGH
_ CHEMICAL
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INDEX
PAGE
Opinions Below ..............ccc ccc eceeeeeeeeeee 1
| Jurisdiction 0.2.00... cece cece ceccceeceeccceues 4
Statutes Involved ....... ip aeeeeceeeeeueaeeeses a 2
Questions Presented ........... 0. cece cee eee e eee 2
Statement ................006. Peewea aes Sehswess 2
ARGUMENT ..... re oe eaeneyes enue ees 5
I rropuction and Summary of Argument.......... a)
Point I—The Act does not require an employer to ;
‘bargain with a union on behalf of individuals who
are-not employees ................... favseeees 6
Point I]—The term ‘‘employee’’ under Section 2(3)
of the Act does not include a retiree ......... as 13 —
Pornt III—There is no evidence that practice in
industry generally or otherwise is to bargain on
retired employee benefits ...................05. _ 384
CONCLUSION 0.00... cc cece cece eee ceeeeeeaeeeueues 39
APPENDIX pie Pe eee eee eereeeeusereua seen bee ewne eee 4]
_ TABLE OF CASES
A. D. T. Company, 112 NLRB 80 (1955) ........... 12
A. O. Smith Corp., 115 NLRB 5 (1956) ............ 20 :
Ainsworth Manufacturing Company, 131 NLRB 273
(0G eos eee ce ee ee ee ee ene pekinese aeeseees 12
s eg pemceumnenneruaee ene PEL AIEEE a NILA Pt ALOT TOIT ES FY A a EL
li
B)
~—~—
Akron Engraving Co., 170 NLRB 22 (1968) ........
Arkansas Valley iain 167 NLRB 47 (1967) ...
Associated Business Service, 107 NLRB 219 (1953)
Blassie v. Kroger, 345 Fed 24.58 (CA 841965). . 17,
Booth Broadcasting Co:, 134 NLRB 817 (1961)'.....
75 N
Bri Manufacturing Company, URB 569
IPED) cnaconanttertangan nemaetn veeaes beveees 23,
Capital Transit Co., 114 NLRB 617 (1955) iwcubeoes
Chemrock Carporidtion, 151 NLRB 1074 (1965) .
Civilian Cafeteria Board, 106 NLRB 208 ( 1953) .
Cone moe, 107 NLRB 866 es) peueeeaeseeaceees
_Douds v. International bintsiiotemen’s Association
241 Fed 2d 278 (GA 2) (1957) .......... hore Baha
FW. Woolworth, 111 NLRB 766 A1955) .........
Frank G. Shattuck Co., 106 NLRB 838 (1953)*2>....
Garvison v. Jensen, 355 Fed 2d 487 (CA 9) (1966) ...
Goodman Lumber Co., 166 NLRB 48 (1967) ........
Goodyear i 112 NLRB 30 (1955) .......
- Homer Gregory, 123 NLRB 1842 (1959). 2.000. s sees
ITouston Chapter AGC, 143 NLRB 409 (1963), 349
Fed 2d 447 (CA 5) cert. den. 382 U.S. 1026......
Inland Steel Company, 7 NLRB 1 (1948) .........
_ Inland Steel Company V-NLRB, 170 F. 2d 247 (7th
Cir. 1948) cert. den. on this issue 336 U. 8.960 ....
=: coltiad © | |
uf a8: Young Company, 55 NLRB 1174 i) eacaas
_L. C. Sinor & Standard Industries, 168 NLEB 67
(1968) cco a ete yin ead ede ta es
Local 872, International Longshoremen’ s Associa-
tion;463 NLRB 8 CL. sy GER na ae ee
10
20
18, 19
19
24, 25
10
. 12,21.
10
ney,
12
BEE eee
~
iii.
; = | PAGE
Michaelson v. United States (291 Fed 940) rev. on
other grounds ‘266 ia. > ierrerrre rer y Sree ee ~ 26
‘National Foundry of New York, Ine., 112 NLRB 1214* &
w
(1955) pedo ws vad ba de eeus dees eee so vnasousan - 20
National Labor Relations Board v. Black-Clawson
Company, 210 F. 2d 523 (6th Cir. 1954) ...... as 7°
NLRB vy. Hearst Publications, 322 U. S. 111 —
CN) oui oh oe eres det tue edesaue- 14, 15, 16, 23
NLRB v. Phoenix Mytual Life Insurance Co., 167
Fed 2d 983 (CA 7F (1948) cert. den. 335 U. S. 845
Ce) eee ee ee rere ee ere 17
NLRB vy. Steinberg & Co:, 182 Fed 2d 850 (CA 5)
"(N990) Sirs oo eae eta cedaeeeseyenessceseecuer ° 16
Owens-Illinois Glass Company, 114 NLRB 387 (1955) 20
W. D. Byron and Sons, 009 NLRB 172, 175 (1944) «ye 20, 23
, ‘~
Pactfic Maritime Association, 28 L. A. 600 (1957) .. 34
Phelps Dodge Corporation v. NLRB, 313 U. 8S. 177
C1082) poses eays cuwdeeen ye so 54s eoheensesuaces 11, 21
Public Segvice Cerporation of New J eraey, 72 NLRB
224 ( 1947) TCT TURTLE TERETE TT TTT Tees = 32
Sharco Manufacturing Co., 112 NLRB 15¥9 (1955) . 20
Sullivan Surplus Sales, 152. NLRB 132 (1967) ‘sees a)
Taunton Supply Corp., 137 NLRB 221, 993 (1962) . 23
Teamsters Local 688 v. Townsend, 345 Fed?2d 17 .
(CA 8) (1968) ...... cece cece cece ee eeee eee 17
Thomas Electronics, Inc., 109 NLRB 1141 (1954) . 11
Umited Drill-and Tool Corporation, 98 L. A. 677
— (1957) 2.2.0... igang daa 4 4 eed os ah aok ky ene en q- - .34
U. S. Gypsum Co., 114 NLRB 523 (1955) .......... 11
UMW v.Pennington, 381 U.S. 657 (1965) ........, 12
Vogue Art Ware, 129 NLRB 1253 (1961) .......... . 19 -
iv
PAGE
Wasson, H. P., and Company, 105 NLRB 373 (1953) 22
Westinghouse Air Brake Corp., 119 NLRB 1391
5. ) 29
W: W. Cross d Company, 77 NLRB 1162 (1948) . 7
W.. Cross & Company v. ‘NLRB, 174 F. 2d 875 (ist
Cir. 1949) oyaue Gees Coase eege<eeecssuaysewees 7
STATUTES
National Labor Relations Act, as amended (61 Stat.
136, 73 Stat. 519, 29 U. S. C. $§ 151, et seq.)
Section 2(3) ........ 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17,
18, 20, 23, 24, 25, 26, 29, 41
POCUON T véievssnseeeses cyee eaves anus . 10, 27, 33, 41
‘Section 8(a){1) ...........0 eee. po eee beseees 41
Section 8(d) ....ssssessss ae geste eases x wi. 42, 43
Section 6(a) (5) cass<csssuedeues 3, 8, 12, 19, 20, 24, 42: -
Section. BUR) cscs esc scasdessseexus< 12, 22, 24, 42, 43
SSOCUION BOS cae vest ease ns aeewesaseunessces 17, 18, 19
Section 302(3) ............ Sepa eee eeeeers yes - 20
Section 302(c).(5) ....... eC GRASh ee eA Seen Sees any ee
Legislative History of National Labor Relations Act
Ei, The. DMO chiens 564505 ses ce essencses 16, 17, 22
S. 1958 ..... peee ees eue uses er in eueeedeeaes . 25, 28°
Oe eee re ee eee ee ree 27
House Report 245 on H. R. 3020.............. 15
House Report 969 on H. R. 7978 .............. 28
Senate Report 573 .........sceenesseeeeees o. 25, 27
| MISCELLANEOUS
Internal Revenue Code of 1954, 26 U. S. &. $§ 401( a)
~ — & 501 (ce) (9) (1964) 6... ec ce eee 19
Webster’s Standard Dictionary (1960 2d Ed.) ...... 16, 18
i ee
IN THE
Supreme Court nf the United Piates
OCTOBER TERM, 1970
6
No. 961
Nationau Labor RELATIONS Boarp,
Petitioner,
v.
_ PirrspurcH PLATE Guass Company,
CuHEMIcAL Division, et al.,
Respondents,
ON WRIT OF CERTIORARI TO THE UNITED STATES
‘COURT OF APPEALS FOR THE SIXTH CIRCUIT
BRIEF AMICUS CURIAE
BY UNION CARBIDE CORPORATION
Opinions Below
The opinion of the court of appeals is reported at 427
F. 2d 936. The decision and order of the Board are reported
at 177 NLRB No. 114 (App. D, pp. 23-55).
~ Jurisdiction
The judgment of the court of appeals (App. B, p. 21)
was entered on June 10, 1970. The Board’s timely petition
for rehearing en bane was denied (Judges Edw — and
_ McCree dissenting) on Jaly 31, 1970 (App. C, p. 22). On
= i a etn tT atime
a
October 16, 1970, Mr. Justice Stewart extended the Board’s’
time for filing a petition for a writ of certiorari to and in-
cluding November 16, 1970. The jurisdiction of this Court
‘is invoked under 28 U.S. C. 1254(1).
Statutes Involved
The relevant statutory provisions are set forth in the
Appendix, infra, pp. 43-47.
Questions Presented
(1) Does Section 8 (a) (1) and (5) of the National La
bor Relations Act as amended require an employer to bar-
gain with a union for individuals who are not employees as
that term is defined in the Act? —
(2) Whether the National Labor Relations Act requires
bargaining on the subject of benefits for retirees after they
- have shed their employee status where practice in large
segments of industry is not to bargain over such subjects.
Statement
Union CarsipE Corporation hereby submits a brief in
this proceeding as amicus curiae in support of the position
taken by the Respondent, PirrssurcH PLate Guass Com-
PANY, CueEmicab Division, and in demonstration of its inter-
est in. this matter states as follows:
1. Union Carbide Corporation was incorporated
in the State of New York in 1917. It is engaged in
the manufacture of chemicals and other industrial
products and it operates throughout the forty-eight
continental states of the United States and elsewhere
throughout the world.
Union Carbide Corporation has approximately
71,600 employees in the continental United States, of
3
whom about 37,300 are hourly paid. Approximately
sixty-nine percent of such hourly paid employees are
represented by a wide variety of unions for the pur-
pose of collective bargaining, with whom Union
Carbide Corporation has entered into more than one
hundred collective bargaining agreements. All em-
ployees, both hourly and salary, are covered under a |
variety of benefit plans.
2. Negotiations have been conducted periodically
with the various unions representing Union Carbide
Corporation employees with respect to employee
benefit plans. However, such bargaining has never
-taken place for any individuals except active em-
ployees on current payrolls. Union Carbide Corpora-
tion has not engaged in collective bargaining with
any union as to installation, alteration or change of
any benefit for retirees after they have left Union
Carbide Corporation’s employ. Such a practice is
common in the chemical and allied industries; it is
one which similarly characterizes the posture of nu-
merous companies in every field of American indus-
trial ard business endeavor. It is a practice, more-
over, which many unions have not yet sought to
change or alter or intrude into the bargaining rela--
tionships between themselves and their employers.
It is Union Carbide Corporation’s knowledge und ex-
perience that the absence of bargaining over retirees’
benefits after retirement is far more common than
its presence, and the instant petition to reverse the
court below is not supported by normal industrial
practice. Moreover, Union Carbide and many other
employers have never regarded such matters as sub-
ject to mandatory bargaiming under the National
Labor Relations Act. If. the National Labor Rela-
tions Board succeeds in imposing such obligation on
employers generally, contrary not only to the clear
language and explicit intent of the Act, but also to
the ‘‘customs, habits and. usages”’ of a substantial
number of campanies throughout American industry,
Union Carbide Corporation and many others simi- —
larly situated would be required to alter a uniform
-_practice of many years’ standing, never challenged
at any previous time, formally or informally. The
e
4 7 ,
result would be moreover, to create a chaotic condi-
tion nationally which would force employers to bar-
gain with unions for two categories of individuals
whose basic interests are decidedly dissimilar and,
indeed, are in basic conflict. Retirees cannot and do
not have any mutual interest with active employees
in numerous matters embracing all customary sub-
jects of bargaining concerning wages, hours, and
other terms and conditions. Active employees have
nothing in common with and no concern over any
benefits accorded retirees, and the results of such
forced bargaining on employers generally will be to
proliferate disputes; prevent ready settlement of
bargaining negotiations; increase the liklihood of
strikes‘and picketing; and: surely contribute added
burdens on interstate commerce.
-3. Union Carbide Corporation respectfully sub-
mits that it subscribes to the argument advanced by
the Respondent in its brief, and submits further that
the information and argument contained in the body
of its brief below niky assist this court in its con-
sideration of the case.
.4. The following brief, amicus curiae, is filed as
provided in Rule 42. Written consent of the Solicitor-
General on behalf of Petitioner, and of the Respond-
ent to the filing of this brief has been secured, as
required by Rule 42. - a
_ 5. The findings of fact, and the decisions of the
Board and the Sixth Circuit Court of Appeals re-
versing the Board’s ruling are fully set forth in the
briefs of the other parties hereto and the record, and
need not be repeated here.
4)
ARGUMENT
Introduction and Summary of Argument
Conceding that employers and the unions who represent
their active employees are required under the Act to bar-
gain over pension and insurance benefits to be given such
individuals after they retire from employee status does not
alter the fact that such individuals doff their employee
status when they retire from employment as surely as when
they leave employment in other ways, such as, layoff, quit,
termination, ete. The Act no longer applies to them in any
way, since they no longer come within the definition of
“employee’’ in Seetion 2(3) thereof for any purpose whaft-
- soever. . 7
Consequently, no retiree can claim any right under the!
Act against his former employer, nor can a union invoke it
on his behalf where such individual has no standing to come
within the ambit of the Act. The legislative history of the
Statute clearly attests to the intent of Congress not to
include retirees under the scope of Section 2(3), as do
previous long-standing decisions of the Board which explic-
itly deny employee status to a retiree for union represen-
tation purposes.
Moreover, the bargaining obligation of an employer
extends, under the specific language of the Act, only to rep-
resentatives of ‘‘his employees.”’ Clearly and beyond ques-
tion, a retiree is one who has severed his connection with
his former employer, and, by definition, is not and cannot
ever.again be one of ‘‘his employees.’’ The Act imposes no—
duty on the employer to bargain with any union as to any
matter unless the union represents, and the matter con-
cerns, those currently employed within the certified or rec-
ognized bargaining unit. Any attempt of a union to bargain
for anyone else is properly refused by the employer, who
need negotiate only within the scope of his statutory
- obligation.
6
Retirees are not left remediless against a former em-
_ployer who seeks to deprive them of any rights to any
benefits that may have accrued to or been furnished them
after retirement. They may enforce these obligations in the.
courts through well-established forms of action both legal
and equitable, and need no additional remedy arbitrarily
grafted onto the Act by an expsnnionia administrative
agency.
Including retirees as employees, moreover, would violate
the basic purposes of the Act which are aimed at protecting
‘‘workers.’’ This purpose rests on Congress’ unquestioned
right to legislate on matters affecting interstate commerce.
But what retirees do or do not do on retirement has no
effect on commerce; has no bearing on the promotion of
industrial peace, a major purpose of the Act; and reason-
ably cannot affect the course of bargaining at any plant
location. There is no visible, overall industrial practice to
bargain on behalf of retirees with unions representing
active employees, and there is no mandate under the law for
the Board to change such practice by administrative en-
largement of the Act into an area Congress’ itself clearly
did not cover.
I. The Act Does Not Require an Employer To Bargain |
With a Union on Behalf of Individuals Who: Are Not
Employees.
Much of the argument of the National Labor Relations
Board in support of the effort by the Board to reverse the
court ruling below in this matter addresses itself to the
question of whether the subject-matter of benefits for indi-
- viduals who have already retired may be the subject of man-
datory bargaining under the National Labor Relations Act.
Such arguments obviously place the cart before the horse;
no collective bargaining is required by the Act of any em-
ployer on any subject-matter whatsoever with respect to
oe
7
any individual who is not an ‘‘employee’’ within the mean-
ing of Section 2(3) of the Act at the time such bargaining
is sought. - .
The Court below regarded such a conclusion as self-evi-
dent; the contrary decision by the Board is a perfectly
obvious attempt to exercise by administrative interpreta-
tion the legislative functions reserved to Congress which
should not go unchallenged. As will appear, Congress has -
expressly disapproved of the Board’s past efforts to ex-
tend the definition of ‘‘employee’’ under Section 2(3) to.
sweep within the ambit of ‘the Act individuals whom the
statute clearly does not, and was never intended to, cover.
The Board has previously stated it will give effect only to
the ‘‘plain meaning’’ of words used (F. W. Woolworth, 111
NLRB 766 (1955), and this Court should see that it does so
in this matter. | |
As the Court, below stated (Pittsburgh Plate Glass Co. v.
NLRB 427 Fed 2d 936 at page 943) :
‘‘The Labor-Management Relations Act: enjoins
employers to bargain collectively and in good faith
with the bargaining agents of their employees about
‘wages, hours, and other terms and conditions of —
employment.’ It is well established, and not in dis-
pute here, that: pensions and insurance benefits to be
enjoyed by employees after retirement are ‘wages’
for the purposes of the statute, albeit deferred ones,
and that insofar as they accompany a provision spe-
cifying a mandatory retirement age, as is present in
this case, they are also ‘conditions of employment?’.”’
W. W. Cross & Company, 77 NLRB 1162 (1948),
enf’d, W: W. Cross & Company v. NLRB, 174 F. 2d
875 (1st Cir. 1949) ; Inland Steel Company; 77 NLRB
1 (1948), enf’d, Inland Steel Company v. NLRB, 170
F. 2d 247 (7th Cir. 1948), cert. denied on this 1SSUe,
336 U. S. 960; National Labor Relations Board v.
Black-Clawson Company, 210 F. 2d 523 (6th Cir.
1954). —
‘However, the issue in this case is not whether
retirement benefits for active employees are manda-
. og
tory subjects of collectjve bareaining: The issue is,
once retirement benefits have been negotiated for ac- ©
tive employees who have retired and begun collecting
benefits, whether an employer may propose improve-
ments in benefits to the retirees individually, or
whether retirees are ‘employees’ under section
8(a)(5), changes in whose benefit must be collectively -
bargained with the union. We find that retirees are
not ‘employees’ within the meaning of section
8(a)(5) and that the Company was under no con-
straint to collectively bargain improvements in their
benefits with the Union.”’’ |
The results of legitimatizing any departure from such
principles will be readily predictable: confusion ; distortion ;
total lack of logic; the unwarranted imposition of burdens
on employers that they were never intended to. shoulder;
- and extending the Act into areas where the flow of interstate
commerce (which the Board is required to protect under
the Act) does not penetrate. The lengths to which the Board
must reach in arrogating to itself the responsibility for such
results are apparent. Its petition boils down to an effort to
aun that an individual who may have at one time enjoyed ~
‘‘employee’’ standing must continue to fall within thé Sec-
tion 2(3) definition of employee after he has shed such
status. Such a proposition is demonstrably absurd.
A. Only Employees Are Given Rights Under The Act.
. Section 2(3) of the National Labor Relations Act, as
amended, reads as follows:
The term ‘‘employee’’ shall include any employee,
and shall not be limited to the employees of a par-
ticular employer, unless the. Act explicitly statés
otherwise and shall include any individual whose
work has ceased as a consequence of, or in connection
with, any current labor dispute or because of any un-
fair ‘labor practice, and who has not obtained any
other regular and substantially equivalent employ-
ment, but shall not include any individual employed
as an agricultural laborer, or in the domestic service
of any family or person at his home, or any indi-
vidual | employed by his parent or spouse, or any in-
9
dividual having the status of an independent con-
tractor, or any individual employed as a supervisor,
or any. individual employed by an employer subject
to the Railway Labor Act, as amended from time to
time, or by any other person who is not an employer
as herein defined. —
This definition clearly is a limited one; it does not in
any sense, nor by its terms, include an individual whose em-
ployee status has ceased except where it has done so as the
_result of an unfair labor practice. The fact that only an
individual ‘‘whose work has ceased’’ for one reason only
continues to enjoy employee status for purposes of the pro-
tection of the Act is clear indication that Congress has
‘specifically excluded any person whose work had ceased for
any other reason from retaining employee status. An indi-
vidual whom Congress has omitted cannot possibly be sub-
jected to the Act by the Board through mere interpretation.
The question is not whether an individual comes within the
specific exclusions of Section 2(3) ; the question is whether
an individual such as a retiree who is simply not an em-
ployee under either the. Congress’ intendment; or any
reasonable conception of the term, can be made into one by
virtue of his previous status which he has legitimately shed.
The point is, of course, that only employees have been
accorded rights under the Aet with respect to their em-
ployers. Non-employees do not have such rights. Indeed, the,
‘Board has frequently taken this position as to individuals
_In such non-employee status, even though some residual.
connection with their former employer still remains. See,
for example, Sullivan Surplus Sales, 152 NLRB 132 (1967),
where ‘‘employees’’ on indefinite leave of absence, whose
return was within their own discretion, were held not to be
employees under Section, 2( 3).
This is a fundamental matter imperfectly understood—
or at least imperfectly articulated—by the Board. How-
ever, it can and should be bluntly stated at the outset that
4
e
10
an individual who is not an ‘‘employee’’ does not have the
protection of nor is accorded any rights under the Act
whatsoever. Section 7, which is the heart of the NLRA,
states clearly that:
‘“‘Employees shall have the ath to self-organiza-
tion, to form, join, or assist labor organizations, to
bargain collectively through representatwes of their
own choosing, and to engage in other concerted ac-
tivities for ‘the. purpose of collective bargaining or
other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities.
(Italics ours) ue
Plainly, no one who is not an ‘‘employee’’ as that term
is defined in Section 2(3) of the Act can claim any right |
thereunder (regardless of the rights or protection available
to him in other connections). No such individual can assert —
the right to bargain collectively, nor can any one assert it on.
his behalf so far as this Act is concerned. No such indi-
vidual can claim the protection of the Act in respect to any
activity whatsoever, concerted or otherwise, in which they
may engage.
This is not a particularly startling concept; the Board
has often expounded it with regard to*such individuals as su-
pervisors; employees of state or municipal governments; or
‘of the railroads; agricultural employees; and others where,
once the now-émptevee status of such particular indjviduals _
has been established, the Board has had ho trouble in, re“
garding them as wholly outside the Act’s umbrella. See, |
for example, Arkansas Valley Industries, 167 NLRB 47
(1967) (agricultural laborers not employees); Akron En-
graving Co., 170 NLRB 22 (1968) (supervisor not em-
ployee); Capital Transit Co., 114 NLRB 617 (1955)
(discussing Board principles as to supervisors), Cwilian
Cafeteria Board, 106 NLRB 208 (1953) (government em-
ployees); Goodyear, 112 NLRB 30 (1955) (railroad em-
ployees).
11
B. Loss of Employee Status For Legitimate Reasons
Customarily Terminates Employer Bargaining
‘Obligations to Such Employee or Unions.
No one reasonably contends that an employer must bar-
gain over terms and‘conditions of employment of an indi-
vidual promoted even temporarily from the bargaining
unit to a supervisory position at the same location, Frank
G. Shattuck Co., 106 NLRB 838 (1953); U. S. Gypsum Co.,
114 NLRB 523! (1955). The reason is clear; such an indi- .
vidual is no longer an ‘‘employee’’ within the meaning of
Section 2 (3) of the Act. The same principle‘has frequently
been applied to individuals who have been laid off or ter-
minated from employment; no obligation whatever exists
requiring any employer to bargain over the post-employ-
ment terms, conditions or status of such former employees,
Thomas Electronics, Inc., 109 NLRB 1141 (1954). Decisions
that appear to be contrary are in fact in accord with such
a basic proposition. | :
Thus, the thrust of * various rulings beginning with
Phelps Dodge v. NLRB 313.U. S. 177 (1944), as clearly
restated by the Court below in construing Section 2(3),
either affects solely individuals who would have been em-
ployees but for an employer’s unfair labor practices, or is
strictly limited to bargaining over terms and conditions of
entry into, or departure from, the bargaining unit, or em-
ployee status during the individual’s sojourn in the unit. .
Terms and conditions of entry to or departure from Sib
tment are clearly a legitimate subject. of bargaining fo
employees currently employed. So is- the setting of terms
and conditions of work that wall affect individuals who are
prospective .employees after they will have become em-
ployees. The terms, conditions and benefits negotiated for
an employee while he retains that status are bargainable
even though the actual realization of such benefits is
‘defer . : 4
) e red a | _
ae 7
-_ Declaring as supervisors and not ‘‘employees’’ certain indi-
viduals who regularly substituted for foremen for parts of a week, -
- even though they were bargaining unit employees at other times.
12
However, not one cage or decision by the courts or the
Board can be found that has ever required an employer to
bargain with any union over the status of an employee
before or after he has undertaken or left his employment.
Even the Chemrock holding, 151 NLRB 1074 (1965), that
a successor employer must bargain with the union repre-.
senting his. seller’s employees in some circumstances is
- based on the concept of the retention of employee status ; it
relies on the continued existence of the bargaining unit,
despite a change of employers.
_ The language of the Act itself is erystal ¢ clear in its limi-
tations in this area. Section 8 (a) (5) merely requires an
employer to bargain with a representative of his employees.
The Board will not certify as an appropriate bargaining
representative a union which purports to bargain not only
for employees, but also for non-employees. Thus, the Board
does not certify unions which include supervisors (who are.
clearly not employees under the Act’s definitions) and non-
supervisors; or which represent both guards and non-
guards, A. D: T. Company, 112 NLRB 80 (1955). Section
9 (a) of the Act, moreover, requires employee representa-
tives to be selected by ‘‘employees’’ in an appropriate unit
to represent such “‘employees’’ and no one else. It follows,.
and the Board’ and the courts have often and consistently
so ruled, that a bargaining agent which represents both
employees and non-employees need not even be recognized
by the employer for purpose of bargaining, let alone dealt
with over the negotiating table, Douds v. International
Longshoremen’s Association, 241 Fed 2d 278 (CA 2, 1957) ;
United Mine Workers v. Pennington, 381 U. 8. 657 (1965),
Ainsworth Manufacturing Company, 131 NLRB 273 (1961).
No other signficance can possibly be or has been ascribed to
the language and structure of the Act. It follows that a
union purporting to bargain for ‘‘non-employees’’ cannot
invoke the protection of the statute any more than the non-
employees.: Such’ a union would be endangering its very
unit certification, and it. representation and bargaining
rights.
13
Where retirees are not employees under Section: 2(3),
they have no rights at all under the Act; an employer need
not bargain as to them with any union whatsoever, let
alone a union which merely represents his own employees
in an appropriate unit which excludes retirees. None of
the provisions of the Act inhibit or prescribe the em-
ployer’s relationship to such persons. Absent such stat-
utory obligations to such individuals, there is no publie in-
terest that the Board or this Court may enforce in this ease.
It is, then, of crucial importance in this matter to deter-
mine who are and who are not employees under Section
2(3) of the Act. A finding that retirees are not employees
would automatically absolve the employer from _any obli-
gation to bargatn with the union. . “
II. The Term “Employee” Under Section 2(3) of the
_Act Does Not Include a Retiree. =
We have alr eady secn that Section 2(3) of Act defines
the term “Comployee”?’ to include former employees only
where their work has ceased as the result of an unfair labor
- practice, and does not include former employees whose work
has ceased for any other reason. No claim is made thaé the
individuals here involved ceased work for any but wholly
lawful reasons. No claim is made that the individual re-
tirees here are encompassed within the normal definition
of the term employee spelled out in all dictionaries as pne’
who works for a wage or salary for‘an employer. There is, in
_ truth, not even a claim that these individuals are members
of the working class, generally; indéed, their very status
of rpfirement?? is the complete negation of any reason
to ascribe employee status to such individuals.
In the face of such an undisputed situation, what war-
rant can possibly be found: for avoiding the rational use
‘of the English language, and failing to apply the plain
meaning of the term employee, The warrant is not found
in the language of the present Act. Nor, indeed, is it even
found in the language of the original statute.
14
True, under the National Labor Relations Act, as passed
in 1935, the term ‘‘employee’’ in Section .2(3) is simply
_ defined as:
The term ‘‘employee’’ shall include any employee,
and shall not be limited to the employees of a partic-
_ ular employer, unless the Act explicitly states other-
wise, and shall include any individual whose work
has ceased as a consequence of, or in connection with,
any ¢urrent labor dispute or because of any unfair
labor practice, and who has not obtained any other
regular and substantially equivalent: employment,
but shall not include any individual employed as an
agricultural laborer, or in the domestic service of
any family or person at his home, or any individual
employed by his parent or spouse.
- Perusal of the Board’s position reveals that it has been
relying on a return to such language by way of ‘‘avoidance”’
of what is euphemistically called a ‘‘narrow definition”’ of
the term employee. The Board would include in it an indi-
vidual as to whom it conceded in its decision below ‘‘most
of the threads that jgnce bound him to the bargaining unit
are severed’’ and he‘retains merely ‘‘retirement rights.’’
The Board claims. reliance on ‘‘the realities of human be-
havior,’’ and ‘‘national policies (citing the Clayton Act)
which reject the view that workers are human machines,”’
as justification for its redefinition of the term ‘‘employee.’’
It cites as supporting this essentially non-legal view solely
the case of NLRB v. Hearst Publications, 322 U. 8S. 111
(1944) decided under the 1935 version of the Act. However,
this opinion no longer can support the Board because the
Court’s ruling in that case was specifically rejected by Con-
gress in 1947 which disapproved the Board’s seeking to do
exactly the same sort of thing it is trying to do here. Neither
the Board nor the Court can ignore such an unmistakable
expression of Congressional intent.
Indeed, even Hearst is no warrant for casual expansion
of the term employee to include retirees. This decision,
even prior to Congressional disapproval, was no blank
check to reinterpret the Act. This Court was not therein
15
concerned with making a retiree into an ‘‘employee’’ but
in ensuring that a broad definition of what constitutes an-
actual work relationship was followed, such that employers
could not escape bargaining obligations as to its workers
by misuse of the term ‘‘independent contractor.’’ The
Court quite obviously did not mean to establish in ‘‘em-
ployee’’ status one who enjoys no working relationship with
the employer at ail. ;
A. Congress in 1947 Disapproved Broad Use of
- Term Employee.
The language added by Congress, when considering the
1947 Labor-Management Relations Act amendments to the |
original 1935 National Labor Relations Act, specifically
disapproved of the broad sweep to the term ‘‘employee”’
that was enunciated in Hearst. It did so in language which
beyond question set forth its intent as to the scope to be
given the term ‘‘employee’’ as used in the Act. The enact-
ment of the Act with Congressional disapproval of Hearst
- is binding under fundamental terms of statutory ¢onstruc-
tion that need not be labored here. - —
Specifically, Congress said (H. Rept. 245 on HR 3020 at
p.17): | | |
‘‘In the case of: NZRB v. Hearst, the Board ex-
panded the definition of the term ‘‘employee’’ beyond
anything that it had ever included before and the Su-
preme Court, relying on the theoretic ‘expertness’ of
the Board, upheld the Board .. . it must be presumed
that when Congress passed the Labor Act it intended
words to have the meanings they had when Congress
passed the Act, not new meanings that the Labor
Board might think up 9 years later. In. the law, there
has.always been a big difference between_employees
- and independent contractors. “‘Employees’’ work
_A for wages and salaries. . . . It is inconceivable that
Congress when it passed the Act, authorized’ the
Board to give to every word in the Act whatever
meaning it wished. On the contrary, Congress in-
tended then and it intends now that the Board give
to words not far-fetched meanings but ordinary
meanings.’’
N77 =
16
The fact that the Board still (p. 22 of its brief) cites
’ Hearst, despite such disapproval, as the only Court buttress
‘of its case, beyond peradventure shows the poverty of its
case.
The House passed HR 3020 with the exact definition of
‘‘employee’’ fashioned in the House Labor Committee.
After favorable action by the Senate on its companion bill,
the ‘differences were adjusted in conference. The Confer-
ence Report followed and adopted the House Report lan-
guage and the provisions of its bill with respect to the
language of Section 2(3), which in turn became the final
version.of the LMRA as it was enacted in 1947: The House
language above has become inescapably embedded in the
law, and cannot be lightly cast aside as the Board now in- —
tends.
It is thus quite clear that Congress intended the term
: ‘‘employee”? i in Section 2(3) to be given its ordinary mean-
ing in the administration of the Act. It disapproved clearly
and specifically any extension of that meaning.
The ordinary meaning of the term ‘‘employee’’ then,
which Congress specifically required the Board to apply, is
elear: An employe. is defined in Webster’s Standard Dic-
tionary as:
‘*One who w orks for wages or salary in the service
of an employer.’’ |
B. Neither the Board nor the Courts Have Held a
Retiree to be an “Employee.”
No amount of ciretumlocution will alter the wholly un-
mistakable fact-that retirees simply do not and cannot come
under the dictionary definition. Any other result would .
plainly contradict the bluntly-expressed intent of Congress,
_ which the Board -has’ obviously overlocked in its haste to
do the very: thing that Congress has cautioned it against
doing. See NLRB v. Steinberg & oe 182 Fed °4 850 oe 5,
-1950) where the court said:
‘* As in the Social Security Act and the Fair Labor
Standards Act, the term ‘‘employee”’ is not defined
17.
in the National Labor Relations Act and the authori- -
ties have been at variance in the past as to the ‘‘test’’
to be applied in determining whether or not an em-
ployment relationship exists under this and similiar
remedial legislative acts. However, the legislative
history of the Taft-Hartley Law; which was adopted
in 1947 as an amendment to the National Labor Re-
lations Act, shows quite clearly that when Congress
passed the Labor Act it intended the word ‘‘em-
ployee’’ to mean someone who works for another
for hire and this clear expression of Congressional
intent we are obligated to follow.”’
The 5th Circuit Court of Appeals agreed that the clearly-
expressed intent of Congress should be followed. We sub-
mit that this decision represents the fundamental legal
principles that must be applied here. See NLRB v. Phoenir
Mutual Life Ins. Co., 167 Fed 2d 983 (CA 7, 1948) cert. den.
335 US 845 ( 1949),
Nothing has been adduced in the other federal circuit
court rulings, heavily relied on by the Board as purporting
to show language which defines the term ‘‘employee’’ to
include a retiree. A careful reading of the complete deci-
sions in these cases makes it clear that the court was in each
instance concerned not with the term ‘Cemployee,’’ but
whether the term ‘‘beneficiary’’ of a welfare fund trust
was restricted or could, under Section 302(c)(5). of the
Act, include a retiree enjoying the trust benefits established
_ for, him when he had employee status under Section 2(3),
in contemplation of his retirement from such status, and
which were to be maintained by contributions of the em-
ployer without regard to hig ‘‘employee’”’ status:
Blassie v. Kroger, 345 Fed 2d 58 (CA 8, 1965) ; Team-
sters Local 688 v. Townsend, 345 Fed 2d 77 (CA-8, 1968)
and Garvison v. Jensen, 355 Fed 2d 487 (CA 9, 1966) are
related cases, of which the initial ruling is in-Blassie; the
other two follow only in part the main ruling. These are
adduced as holding that, for purposes of Section 302 of the
Act, the term ‘‘employee”’ is intended to include both cur- :
18
rent and retired employees. Hence, it is reasoned, the same
definition would govern Section 3(3). The Board has
grossly distorted the effect of these cases; they in no sense
whatever even define the term employee. Indeed, Blassie
rules that an individual who has retired and for whom no
contributions were’made to the welfare plan trust prior to
retirement. cannot be a beneficiary thereafter. Garvison
saw no prohibition in Section 302 against such contribution.
The court in Blassie does devote a portion of its opinion
to resolving the question of ‘‘Retired Persons as Benefi-
ciaries,’’ 345 Fed 2d, at p. 68, yet the same court also, a few
lines farther on, flatly states that .
“An employee ordinarily is a person presently en-
gaged in active employment. He is ‘‘one employed
by another; one who works for wages or salary in
the service of an employer.’’ Webster’s Standard
Dictionary (1960 2d Ed. p. 839).’’
The court then concluded that benefits of the trust need
not be ‘‘confined in their enjoyment to the period of the
employee’s active employment . . . Our conclusion is that
retired persons may be beneficiaries.’’ The court made
it quite clear that its remarks were confined solely to the
question of retirees as beneficiaries; it was not even asked
to consider the question of whether they were employees
under Section 2(3), let alone the question of whether the
employer was obliged to bargain with their former union
on their behalf after they had been severed from employ-
ment via retirement.
The other companion cases are devoted to the same.
‘issue. They, no more than Blassie, can be cited in support
of mandatory bargaining by an employer as to retirees. A&
_the Court below ‘said, in rejecting the attempt to label
Blassie as relevant to this instant case (147 Fed 2d 936 at
948) :
We are: ecsiinijarly unpersuaded ‘by the analogy
made by. ie Board between the word ‘‘employee’’
19
as that word has-been construed for the purposes of
Section 302 of the Labor-Management Relations Act,
29 U. S.C. § 186 (1964), see, e.g., Blassie v. Kroger,
345 F. 2d 58, 68-71 (8th Cir. 1965), and the word”
‘‘employee’’ as it appears in Section 8(a)(5). Sec-
tion 302°is a criminal provision, making it-a misde-
meanor for an employer to make payments to.a union .
representing his employees. Section 302(c), under
which Blassie, supra, was decided, exempts from the
operation of the section employer contributions to,
inter alta, employee. trust funds, among which are
pension and retirement plans. ‘Not to regard re-
tirees as employees for the purposes of that section
would frustrate the purpose of retirement trusts,
which have. been designated as mandatory subjects .
of bargaining, by making distributions to retirees
from them illegal: The Board’s argument that it
is an ‘‘anomaly’’ to treat the word differently under
_ the two sections is itself an anomaly.
7)
We also reject the Board’s argument that the -
‘interpretation of the word ‘‘employee’’ by the In-
ternal Revenue Service under Sections .401({a) and
501(c)(9) of the Internal Revenue Code of 1954, 26
U. S. C. §§401(a) & 501(c)(9) (1964), is disposi-
tive of. the issues in this case. See 26 CFR §-1.401,
as-revised, Jan. 1, 1969.”’
C. Individuals Lawfully Severed From Employment
Not Employees Under the Act.
The real hurdle posed for the Court in’ this case is
whether or not an individual who has been lawfully severed
from his employment can nevertheless continue to enjoy
employee status; to remain, as an employee, in a bargaining
unit of workers who are in.an employment relationship;
and to be required to deal with his former employer only
through his former union. Yet a retiree.stands in no differ-
ent position than any other lawfully terminated employee.
The Board has never considered employees who were law-
fully discharged for cause and not in yiolation of the Act
to be employees, Booth Broadcasting Co., 134 NLRB 817
(1961). Cone Mills, 107 NLRB 866 (1954). vom Art’
Ware, 129 NLRB 1253 (1961). ar
20
The Board has never considered as employees individ-
uals who have been laid off from employment for lack of
work: or other legitimate reason and who have no real ex-
pectation of reemployment within a reasonable future time,
even though such employees remain on the employer’s re-_
eall list. See Sharco Mfg. Co., 112 NLRB 1519 (1955), which
held a laid off employee ineligible to vote in an election
_ even though he was subsequéntly rehired. ‘‘The eriterion,”’
the Board said, ‘‘is whether at the time of the election he :
has a reasonable expectation of reemployment as a regular-
employee in the foreseeable future.’’ The fact that they
have continued seniority rights does not entitle laid-off ‘in-
dividuals to participate in voting in a representation elec-
tion. Owens-Illinois Glass, 114 NLRB 387 (1955). Na-
tional Foundry of New York, Inc., 112 NLRB 1214 (1955),
(employer stated he would not reinstate employee). An em-
ployee who was told he ‘‘would be rehired if feasible’’ was
not eligible to vote in Associated Business Service, 107
. NLRB 219 (1993). ,
Further, an ‘employee absent for physical illness who
had been ruled ‘‘not reemployable’’ by the company doctor,
was held not able to vote. A. O. Smith Corp., 115 NLRB 5 ©
(1956). The Board-in Public Service Corporation of New.
Jersey, 72 NLRB 224 (1947) expressed grave and substan-
tial doubts that pensioners are employees. It said:
‘‘We have considerable doubt as to whether or
not pensioners are employees within the meaning of
Section 2(3) of the Act, since they no longer per-
form any work for the Employers, and have little -
expectancy of resuming their former employment.
In any event, even if pensioners were considered to
‘be as employees, we believe they lack a substantial
community of interest with the employees who are
presently in the active service.of the Employers.”’
In W. D. Byron and Noes, 55 NLRB/ 172 (1944), the
Board was even more explicjs. Here, the Board stated, with
respect to pensioned retirees, whom the employer had a
right to. recall to work = had not done so:
‘4
21
‘*Since it appears that the pensioners have little ex-
_ pectation of active employment at the tannery, we
. . Shall exclude them from the bargaining unit of reg-
ular production and maintenance workers. »”» 59
NLRB. at 175.
In J. S. Young Coimpany, 5 55 NLRB 1174 (1944), the
Board excluded from the bargaining unit a retired. pen-
sioner, although he was actually employed At certain ‘‘odds
and ends’’ work in the plant.
The main brief of the Solicitor-General on behalf of
the Board eoncedes at page 24 that the Board currently
regards and will continue to regard pensioners as excluded
from the bargaining unit and so ‘‘ineligible to vote in Board
election because they do not share a sufficient community
of interest *with active employees.’’ Such a concession
plainly negates the whole Board claim that retirees are em-
ployees.
~All of the above lines of cases are distinguished by a
‘Major point of common linkage; the principle that any em-
ployee validly severed or terminated from a bargaining
unit has no employee status with respect to that unit, and
so cannot claim the u@ of the Act, regardless of’the reason
for severance, except@in three situations; first, that he has
reasonable expectation of reemployment; or second, that
he was severed because of unfair labor practices; or third,
he was on strike and, if the strike was economic, he had
not been replaced. The bulk of such persons are, it will
be discovered, those who would have attained or kept such
a relationship but for the employer’s unfair. labor prac-
tices. Sucli is the basic thrust of the line of cases beginning
with Phelps Dodge v. NLRB, 313 U. S. 177 (1941) and con- - -
tinuing through Goodman Lumber, 166 NLRB 48 (1967) ;
Local 872, ILA,.163 NLRB 89 (1967) and Chemrock ove -
151 NLRB 1074 (1965).
But none of the above. three exceptions to the rule ap-
plies to the retirees heré or to retirees generally? To repeat,
22 ..
no person or individual who has been validly severed from,
or refused, employment has ever been deemed by the Board
or th@ecourts to have-‘‘employee”’ status after Severance
or prior to employment.
D. Board Violates Its Own Standards By Its Ruling
In This —
It is, of course, correct to say that many of the above
cases deal with an individual’s right to vote in a representa-
tion election. -It is equally correct to say that.such eligi-
bility does not always depend on employee status. But the .
point of the above line of cases is that the Board eliminated
the retirees’ eligibility to vote on the basis that such per-
‘sons. were not in fact sufficiently related to the bargaining *
- unit, because of lack of expectation of future. connection
therewith, to be deemed employees.” Employees, after all,
are given in Section 9(a) of the Act the right to vote for
. their collective bargaining representatives; and the Board
“has no statutory warrant -to deny them such rights unless
they are not employees. Hence, the total relevancy of the
findings in those cases to the instant case may be seen. In
all such matters, retirees are in exactly the same situation,
and (as the Board itself points out) individuals may not
lack employee status under one section of the Act and ac-
quire it under another.
Member Zagoria in his dissent in this case ‘made pre- _
cisely this point:
“The Board did, at one time, as in Wasson [105
NLRB 373], make a distinction between unit inclu-
sion and eligibility to vote. It no longer does so for
reasons precisely in point here; if an employee has :
sufficient interests to be included in the unit, he
should be given a voice in the selection of a bargain-
ing representative; if he is not given such voice, he
should not be included in the unit.’’
So did the Trial Examiner i in his diteniass) of the com-
plaint here, in the following cogent words:
‘‘Further, the Board had specifically held that re-
tired persons formerly empl yed in a unit afe ineligi-
t
a
_ 23
ble to vote in an election to determine whether a. ~
collective-bargaining agent page, cbgghcrrgp! the em-~
ployees currently working in that. unit. «Taunton
Supply Corp., 137 NLRB 221, 223 (1962); W. D.
Byron & Sons; 55 NLRB 172, 175 (1944). If retired
persons are excluded from a ‘anit for the purpose of
voting for a representative of that unit, manifestly
they also should be eliminated’ from the unit for pur-
poses of collective bargaining relating to employees.
in that unit.’’
The sb allegation in the Board’s brief at page 24 thatits °
rulings excluding pensioners from voting are not based on
rulings that they are not employees is a complete misread-
ing of the Board’s own doctrines. In erree, ‘the Board
clearly said that |
‘‘We have*considerable doubt that peuiioners = are
employees under Section 2(3) of the Act.’ ,
See also the discussion regarding Briggs, in. subsection -
E below.
Who the Board really considers employees, moreover,"
may most readily be discerned in the numerous cases whigh -
deal with the. question of whether particular individuals
are employees or are independent contractors. TKe Board,
for example, found not to be employees’ certain persons
engaged in hauling operations for an asserted employer, —
who were ‘‘free to work of not as they see fit.and té haul
in the, manner they deem best’? L. C. Sinor & hicguns
Industries, 168 NLRB 67 (1968). |
Indeed; the. various line of cases such as NDRB v.
Hearst, supre and H ouston Chapter AGC, 143 NLRB 40@
(1963), 349 Fed 2d 447 (CA5), cert. den, 382 U. S. 1026,
which have dealt with the question of Whether particular
individuals are employees or independent contractors have
all turned on the Board’s long-standing ‘‘right of control”?
test. This itself has long defined an employee as one as to
whom the employer has ‘retained control over the method,
manner and means of carrying out his employment tasks,
—_—_— * >
SAU | SBT NGM eile BEY lial PLETE AOA TIRE TA A ae eto he
{>
>
. 24
as opposed to mere control over the end result of such
projects, which would characterize an ceil lla contrac-
tor.
The Board cannot, it must be epeabi, say that an
employee is defined as one thing for one purpose and
another thing for another. If the test of an employee rela-
tionship is the retained right of control, then clearly no
guch right has been retained for retirees. The employer
has no right at all to tell retirees what to do; no right to
require them to perform any services for the employer; no
right to control for whom, if anyone, he works, nor any
phase of his activity w hatever. Based on the Board’s right
of control test, which is uses to.determine employee status,
it cainnot possibly find any retiree to be an employee. The
entire character of such a person, indeed, makes nn the
very antithesis of an employee.
E. Board Narrowly Defines Employee For Kaede
ing Purposes.
There has been some effort made by the Board in this
case to say that an employee is ‘‘anyone in the w orking
celass,’”’ citing Briggs: Manufacturing Company, 75 NLRB
569 (1947), because of the language of Section 2(3) stating —
_ that the term employee is not limited to employees of a .
particular employer. This claim plainly begs the question.
Indeed, the Board itself in the Briggs case stated that in
some contexts the term employee:
‘‘in its limited sense may include only the employees
of a particular employer as, for example, in Section
8(5) which requires the employee to ‘‘bargain col-
‘lectively’’ only with the representatives of his em-
ployees, subject to the provisions of Section 9(a).’’
Briggs itself, then is authority for Respondents’ posi-
tion on the issue in this case, that the term employee is to be
narrowly defined when it refers to the duty to bargain.
Put another way, the Board itself long ago ruled that the
term ‘‘employee’’ is not to be broadly defined where the
mandatory duty to bargain is involved; the broad definition
RASS Seats Ls iE tT LIEN eR
20
' for which Briggs is cited applies in’ fact only to cases of
unlawful termination of an employee and so forms no prece- «.
_ dent here. |
F. 1935 Act Limits Term Employee To Individual
. In Work Relationship. . * .
The legislative history of the 1935 Wagner Act makes
the limited legislative intent perfectly clear. The original
bill (S. 1958) was introduced by Senator Robert Wagner
(D. NY). At the hearings, witness Harry G. Eldard (1
Legislative History of NLRA, 1883) stated that (in con-
nection with the Section 2(3) definition of employee then
proposed) : s
“’We are going far afield when we say an employee ;
retains that status when he is away from his work.”
The Committee Chairman (Sen. David Walsh,. D-Mass.)
replied: .
‘*T think -it is meant to include an employee who is
_ discharged from being a member of a union that his
employer does not approve of...”
Senator Wagner then chimed in, as the author of the
bill: ;
“The unfair labor practices are enumerated and if
he (the employee) leaves because thoge practicagfare
indulged in... he has a right to establish that fact,
and if he cannot establish that fact, he ceases to be
an employee because he left without justification.” .
Senate Report 573, which accompanied the presentation
of S. 1958, at p. 6 fully explains what was in fact the only
reason Congress had in stating that the term ‘‘employee’’
‘‘shall not be hmited to employees of a particular em-
ployer.’
‘‘The term ‘‘employee”’ is not limited to the em-
ployees of a particular employer. The reasons for
this are as follows: Under modern conditions em-
ployees at times organize along craft or industrial
lines and form labor organizations that extend be- |
26
. yond the limits of a single-employer unit. These
organizations at times make agreements or bargain
collectively with employers, or with an association of
employers. Through such -business dealings, em-
ployees are at times brought into an economic 'rela-.
tionship with employers who are not their employers.
In the course of this relationship, controversies in-
. volving unfair labor practices may ia Tf this bill |
did not permit the.Government to exergise complete
jurisdiction over‘stigh controversies {arising from
unfair labor practices), the Goveryximent would be
rendered partially powerless, and could not act to
; . promote peace in those very witie-spread controver-
sies where the establishmen¢ of peace is most essen-
’ ‘tial to the public welfare. 7 2°
‘‘The term ‘‘employeg”’ also includes an individ-
* ual whose work has ceafed as a consequence of or
in connection with any/current labor dispute or be-
cause of any unfair jabor practice, who has not
attained any other regular or spbstantially equiv-_
alent employment. The bill thus. observes the prin-
ciple that men do not lose their right only to be
considered as employees for the purposes of this
bill merely by collectively refraining from work dur-
ing the course of a labor controversy. _Recognitien
that strikers may retain their status as employees
has frequently occurred in judicial decisions. (See,
for example, Michaelson v. United States (291 Fed.
940), reversed on other grounds in 266 U.S. 42.) To
hold otherwise for the purposes of this bill would
be to withdraw the Government from the field’ at the
very point where the process of collective bargaining
has reached a critical stage and where the general
public interest has mounted to its highest point. And
to hold that a worker who because of an unfair labor
practice has been discharged or locked out or gone
on strike is no longer an employee, would be to give
legal sanction to an illegal act and to deny redress
to the individual injured thereby.”’
It will be noted that Congress made two main points.
First, the only reason given for expanding the concept of
‘‘employee’’ beyond its usual meaning in Section 2(3) was
that organizations of workers sometimes extend beyond ©
27
4
the limits of a single employer, and eollective bargaining
sometimes occurs on a multi-employer basis on behalf of
several groups of employees. Only for this\reason, and to
enable the Board to help prevent unfair labor practices
- where ‘‘employees are at times brought into eponomic rela-
tionship with employers” not their own was tha qualifying
phrase ipserted. And, it is clear and obvious, thd necessary
concomitant of such a concept is in fact the existence of
an employment relationship in the first place at the time
of the incident. As already pointed out, this is hardly the
sort of relationship that would encompass retirement status.
Secondly, the } ériginal 1935 bill (S- 2926) ‘excluded. from *
its, purview the employees of small employers with under
10 people. This original exclusion was dropped in S. 1958
as reported for the reasons set forth i in Eenete Report 573,
as follows: | "
‘<The rights of aniplos ees should not be denied be-
cause-of the size of the plant in which they work.
And in eases where organization of workers is along
craft or industrial-lines, very large associations of
workers fraught with great public significance may
exist although all the members thereof may work in
very small estah'ishments.”’
Here again, it is crystal clear that Congtene was think-
ing of an employee in the sense of a worker, not one who is
retired from that status, or a former worker. As Senator
‘Wagner said inthe debates (2 Leg. History NLRA, p. 2400) :
“ ‘‘Of course the decisions of the courts, so far as
I know, have generally regarded workers as em-
ployees even though = may be on strike.’? (Em-
phasis supplied) |
Following such statement, Senators Hastings and Wag-
ner discussed whether employees should have the rights
granted them by Section 7 of the Act and exercise them
during working hours! Senator Wagner eventually agreed
that employees. who did ‘‘these things’’ while they were
working would be ‘‘subject to. discharge’” without fear of
unfair labor praeiice limitations.
. Here again, the whole thrust of the thinking of Congress
is on-the employee as a worker. Senator Wagner said
(1 Leg. History NLRA p. 2336) that
‘‘The right of workers to bargain collectively through
representatives of his own choosing must be matched
- by the correlative duty of employers to recognize
and deal in good faith with these representatives.”’
‘Collective bargaining is the making of agreements
to stabilize employment conditions and promote fair
working standards.’’ (Emphasis supplied)
The journey in the House of Representatives of a com-.
_panion bill to Senator Wagner’s followed much the same
line as S. 1958 as the Senate. Houst Report No. 969 on
H. R. 7978 (1 Leg. History NLRA, p. 2917) said that the
‘‘Section 2 definitions are for the most part self-
explanatory. [They were the same in S. 1958 as in
’H. R. 7978.] The committee wishes to emphasize
the need for the recognition as expressed in subsec-
tions 3 and 9, that disputes may arise regardless of |
whether disputants stand in the proximate relation.
of employer and employee, and that self-organization
of employees may extend beyond a Pome plant or
employer.”’
The House, just as the Senate, used the — workers
and employees interchangeably.
It is’thus amply clear that the term ‘‘employee’’ estab-
lished in the original Act of 1935 meant ‘‘worker,’’ and,
when broadened beyond a worker for one employer, meant
only a worker whose employer and union were linked for
. bargaining with other employers and union units. It did
‘not even once enter the head of any Congressional repre-
_ sentative that the term would ever conceivably include
someone not a worker at all. |
Both Senate and House actions clearly show what
Congress meant to include in -its definition of the term
‘Cemployee.’’ It quite plainly did not have in mind defining
the term so as to embrace a non-employee with the single
29
exception being where (as explicitly provided in Section
2(3)) such a person’s employee status was precluded or
terminated due to an ‘unfair labor practice. The term
‘dismissal of the complaint:
‘‘employee’’ cannot possibly include one who has been
severed from employment legitimately and not in violation
of the Act, and no amount of sophistie argument is going
to alter the plain meaning of words. In addition to other
citations, see for example Homer Gregory, 123 NLRB
1842 (1959) holding an employee who had quit his job not
tobe anemployee. See-also Westinghouse Air Brake Corp.,
119 NLRB 1391 (1958).
In other words, as the Trial Examiner below said in his
t
to - -
‘‘such instances of employees remaining in the unit
while not actually employed therein . . . contemplate
not only a continuation of the employer-employee
relationship but also’a resumption of or return to
work in the predictable future:’’ _
Gz. Including Retirees As Employees Violates Basic
Purpose of the Act.
Plainly, an assertion that retired persons still remain
employees under the Act comports in no way with its basic
purposes. The Congressional policy in the preamble to
the LMRA of 1947 declares it to be the policy of the
United States to protect the exercise by ‘‘workers’’ of full
‘freedom of association, self-organization and bargaining.
‘“‘Workers’’ are to be given the right to designate (for
_ purposes of the Act) representatives of their own choosing.
The fact is that retirees are not ‘‘workers’’. They are
wholly out of the labor market and are not seeking jobs.
One of the purposes of their retirement, indeed, is to
avoid imposing on them the necessity of competing in any
labor market in order to achieve an income on which to
live. Retirees have no longer any interest in the terms
and conditions of employment that obtain at’their former
place of employment. They are not on the payroll. They
are no longer concerned -in the shop issues that involve
30°
/
their former colleagues who remain employees. They have
no regular access to the plant, nor any hope of recall. They
have Mo active fnterest in union affairs and, indeed, are
notven accorded a Voice in any union decisions (including
__Ahe question of ratification of the collective contract). The
amicus curiae brief of the UAW below concedes to be
true that in many unions they have merely honorary, non-
' voting status.. They do not participate or vote in union
matters, any more than they participate.in or are affected
by changing working conditions on the work floor, or by
an increase in wages or other on-the-job benefits.
There is no effect on commerce of what retirees do when
retired. They cannot possibly be said to burden or obstruct
commerce. They no longer need the protection of collective
bargaining which does not even pertain to or interest them
any more. Indeed, for them, the collective bargain: has long
ago been made. They are now enjoying its fruits, and are
protected by the contract which, as to them, arose out of
the bargaining but which no longer is subject thereto. The
retirees are isolated from the mainstream of interstate com-
merce and far from the needs of collective bargaining. They
are no longer employees; indeed, ‘such non-employee status
is implicit in their.very nomenclature.
The requirement of. bargaining with retirees, then,
would hardly add to the expressed purposes of the Act or
promote industrial peace because such bargaining, or fail-
ure thereof, imposes not the slightest burden or obstruction
on commerce. The protection of. retirees so ardently
espoused by the Board will stem not from bargaining, but
from the contractual arrangements made for them when
they were in employee status in anticipation of retirement:
therefrom. Whether or not it is wise to-reconvert them
into employees, as a matter of social philosophy, so that
they can enjoy alleged additional protection through union
organization is not a matter for administrative or juristic
interpretation of the Act. It cannot be said, as the Board’s
brief to this Court states (page 31), that bargaining j is more
‘‘meaningful’’ with respect to retirees’ benefits. The Board
31
does not anywhere specify what it means by that term which .
must be viewed as a mere precatory generality without sub-
stance of any sort, and certainly not a legal. concept that
- could persuade this Court. It is a matter that is aiid should
be left up to the Congress which is charged with the deter-
mination of such matters, and which has already expressed
its displeasure at any efforts to expand the terms of the Act
beyond what Congress clearly intended. ‘Only in that way
can a full and complete record’be established on the basis
of which action could be taken.: And it can readily be stated
that the record is far from one-sided on the social question.
It is true that both the Board and various amici curiae
have expressed themselves vigorously on the desirability
of-including retirees within the term ‘‘employee’’ by mis-
use of administrative fiat. It may be questioned whether
the interest of such advocators are fully outlined therein,
or whether they would have done better to admit that a
major consideration in their thinking is the expansion of
union power: Indeed, there have been recent instances
where the, retention of retirees as union members.through ~
enforced subservience via welfare payments has served to
" perpetuate in power a union governing hierarchy. that has
lost touch with its active employee members; does not rep-
resent them; yet cannot be ousted because of the voting
strength of retirees. There is grounds for suspicion that
recent union elections in the United Mine Workers con-
cluded as they did in favor of the union establishment solely
because of the fact that retirees were permitted to vote.
Instances of such conflicting interest between employees;
and this category of non-employees could be proliferated. .
Many of them were set forth in Member Zagoria’s dissent’
and in the Trial Examiner’s decision svpra. - Other detri-
mental social consequences of the Board’s action were.
reviewed and set forth by the Court below, in stating
that the Board. has no warrant to ‘artificially create dr
manufacture new economic forces.’’ 147 Fed. 2d at 949. -
The net effect of these instances shows that arbitrary
judicial and/or administrative inclusion of retirees within
— ee a Tee Pee 2; Mi te OEE RAG Pte NK, 6 8 Ope PHRF
the scope of the tenn ‘employee’? would actually serve
to frustrate the laudable purposes of the Aét, not advance
them. Retirees, then, have little if anything in. common
with active workers under Board policies which exclude
them from the scope of any appropriate unit established
by it for bargaining and deny them the right to vote in.
any representation election it conducts. Public Service
of New Jersey, supra. How the Board can carry water
on. both shoulders by insisting that retireees are em-
. playees. on one hand while denying them the substantial
rights accorded all other employees by the Act on the other,
’ remains a total mystery. Yet it was and is the workers
whom Congress has sought to protect with regard to these
rights. The are the ones whose fate affects commerce.
- Summarizing, retirees’ status does not affect commerce
with’ respect to the establishment of any terms and condi-
tions of employment whatsoever. Retirees do not .‘‘de- —
press’’ wage rates; they receive no wagés. They cannot
cause or be subject to any diminution in employment;
they are not employed. They have no interest whatsoever .
in such common in-shop matters as seniority systems, work
assignment policies, incentive rates, overtime handling, job
change or establishment, holiday or vacation benefits, plant
safety, foremen working, and a host of other matters which
* customarily comprise the bulk of the typical labor contraet.
They do not go on strike; they are not working. Their
pension benefits are fixed and unchangeable by contract at
the time they retire and, indeed, are technically: paid not
by their former employer but by frustees or insurance com-
panies with whom the employer has made arrangements
for such payments.
Retirees have so little in common with active employees
that it is a sheer travesty to label them as in the same cate-
gery. They have absolutely none of the typical indicia of
employee status. Their status is so markedly different
from employees that no reasonable individual could pos-
sibly so consider them. Bargaining on their behalf (if that
/
hee \ Lal
33 | _
is indeed what the unioyg want to do)-can have no effect’
on commerce whatever. It can cause no industrial strife
or unrest whatever because no strike of retirees is possible.
They are completely out of the labor market, not to mention
the bargaining unit they once were members of.
There is so tenuous a conneetion at best, through the —
receipt of certain benefits, that this Court.is not warranted
in escalating it into employee statis. They have-no need
of protection; their contract for retirement benefits, for
which they have already bargained, assures them of that.
They can have no employee status; part of the bargain
previously made-on their behalf is their departure from
their former bargaining unit and their relinguishment of
employee status in.exchange for certain benefits. What they
do or do not do thereafter has not even the remotest effect
on commerce, and there is accordingly no-statutory policy
which would justify court or Board-ordered resumption of
employee status, certainly not on the basis of changing or
misreading the.plain words of the English language, as
is here attempted. In short, retirees are, by prearrange-
ment, departed from, not a part of, the labor market and
cannot possibly claim to be part. of it on the mere basis
of receipt of certain benefits which are in reality nothing
‘but the consideration for their staying out: of the labor
market.
It is thus clear that retirees are not employees as that
term is used in the law. They are given no rights under
Section 7 of the Act, and cannot claim the protection -
thereof. Nor is there any obligation on the part of their.
former employer, with whom they now have a wholly giffer-
ent relationship than that of employee, to bargain with any ,
‘purported representative of such non-employees. Neither
_ the language; the policy; or the intent of the Act commands
it, and it is not for the NLRB or the courts to read into
the law what Congress has explicitly said should not be
there.
Lo pl
- 34
Ill. There Is No Evidence That Practice In Industry
- Generally or Otherwise Is To Bargain On Retired En-
ployee Benefits.
It is the normal custom ‘for the NLRB as the agelicy
charged with administration of the Act, to rule in any given
instance on the basis of record evidence. Therefore, in the
light of the Board’s efforts to enlarge the scope of the Act,
in respect to the type of individuals subject to its jurisdic-
tion, it might have been thought that a-major portion of
the Board’s case would at least have been suppor ted by
factual record evidence.
No such assumption could possibly be made with regard
to the conclusion of the Board that (177 NLRB #114):
‘‘Many employers and unions now bargain about
pension and benefits for retired employees, reflect-
ing a widespread understanding of the law shared in
industrial circles and among members of the labor
relations bar.’’
The Board supports that astonishing assertion in two
ways, neither of them factual in any sense whatsoever.
First, it merely cites two arbitration decisions, one by
Professor Archibald Cox, United Drill’¢ Tocl Corp., 28
L. A. 677 (1957), the other by Arbitrator Sam Kagel in
Pacific Maritime Ass’n., 28 L. A. 600 (1957). Neither of
them furnishes the slightest scrap of buttressing or support
for the conclusion it draws.
Professor Cox’s award was merely an interpr siation. in
a grievance arbitration, of-a contract clause. The issue did
not involve any refusal to bargain or any other unfair labor
practice whatever under the LMRA, but simply a question
as to whether one employer and one union had in fact so
conducted their contract negotiations as to agree on a clause
therein which covered retirees. It should be noted that
Arbitrator Cox was clothed with no more than the usual
arbitral authority to interpret and apply the contract before
him, not to fashion a new agreement and certainly not to
rule on the question of whether or not unfair labor practices
had been committed. He was given no mandate or commis-
sion to ascertain whether or not the practice in industry was
or was not to bargain on such a question. It was noted in
passing, and as dicta to the award, that there had been.
some bargaining in some industries on this question, but
_ this itself was not supported by record evidence and cannot
be used ‘as substitute therefor by the Board. Certainly
Professor Cox did not so rule. The main point of the award,
moreover, is studiously and carefully ignored by the Board,
because it reflects Professor Cox’s view that, in such cases
as this, involving retirees,
“The absence of a statutory date to bargain i is s not ‘
enough to invalidate’ [employer ’s] promise.’ -
Cox also states thence that even common practice can
hardly change the law, a point also studiously sae by
the. Board in its anxiety to change it.
The Cox award, then, is not only no authority or war-
oat for the Board’s conclusion, but it actually flatly con-
tradicts and denies the Board’s major premise in this case;
that there is a statutory duty to bargain over retirees’ bene-
fits. Professor Cox himself is authority for the proposition
that industry practice cannot bring about the existence of a
statutory duty not found in the law; and also that such®
statutory duty may very well not exist at all. Nor can he
be said to rule that industry generally bargains over re-
tirees; his award is very limited and non-factual in that
area.
The other award cited by the Board involves not even a
- matter of contract interpretation, let alone any question of
mandatory bargaining, but merely the size of an employer’s
contribution to a welfare fund, which in fact existed for
providing life insurance for both active and retired ‘‘men’’.
(not ‘‘employees’’). It cites no practice, makes no claim
36
- or reference of any kind towards mandatory bargai. ug,
and cannot possibly stand as support for the Board’ S con-
clusion.
These two arbitration awards are the main basis ‘used
by the Board for its conclusion as to industrial practice.
This maneuver in itself would shock one’s legal conscience.
* But, since these cases are readily eliminated as a valid basis
of support.for the Board ruling, the conclusion must neces-
sarily fall, unless some other valid prop for it appears.
There is concededly not one shred of record testimony or
evidence on which the Board conclusion upholding retiree
bargaining is based. No one on either side adduced any
facts whatever to shore up the Board’s conclusion; it fol-
lows that it must be withdrawn from consideration by this
Court as a matter of law because the mere assertion is not a
finding but a mere claim without proof or factual underpin- .
ning. Where such claim by the Board becomes a substantial
factor in the rendering of its’ruling, the only possible action
by this Court should be a dismissal on the record as a whole
because of utter lack of evidence.on such a major point.
It is, of course, true that some of the amicus curiae briefs
below alleged ‘‘many. instances in which bargained increases _
in benefits have been obtained for retired workers.’’ These
‘ statements, too, remain mere assertions, unproven and un-
provable; they should not have been even considered in
reaching a decision below for that reason alone. It is hardly
an appropriate or useful means of policy-making to depend:
on such self-serving documents, and the outcome is hardly
worthy of the standards which we have a right to expect
from a government agency charged with so ‘delicate and
complex a task as administering national labor policy.
Indeed, the folly of relying on not-disinterested amicus: —
curiae briefs to supply the facts that the record evidence
does not do is evident from the considerable stress laid in
such briefs to the Board on the supposition that General
Electric Corporation bargained in fact over retired em-
37
ployee benefits. Yet General Electric itself flatly contra-
dicted such claims ina letter to the Board which wrung an
unwilling apology for its error from the most flagrantly
mis-stated amicus curiae briefs. :
The other sources cited in support of the Board’s con-
clusion basically do not stand for the proposition that there
is a general practice of bargaining, mandatory or-otherwise,
over changes in retired employees’ benefits, but merely |
show (even if taken at face value) that there have been
‘changs in such benefits from time to time after certain
individuals have retired. This is really chafacterized by
the Board, not as a practice in support of mandatory bar-
gaining, but merely as ‘‘showing a broad potential-need
for.union bargaining with regard to’’ retirees. Assuming
the existence of a need, it does not warrant changing the law
by administrative fiat. This argument should be addressed
to Congress, not to the adjudicative bodies. |
Indeed, much of the so-called practice of bargaining
over retirees’ benefits is actually not that at-all but merély
normal routine bargaining over changes in such benefits for
employees currently on the payroll in the appropriate unit.
The very considerable confusion on this point has obviously
been fostered by the Board and the amicus curiae as a
means of. shortcutting normal procedures of securing evi-
dence.
Surely no one can be allowed to ignore so fundamental
<a bastion of our current legal system as the requirement
he
of record evidence to support a result in favor of a dubious
expediency. If the proposition the Board here seeks to
establish in fact is valid, no need for such rejection of long-
term legal standards would be necessary. The absence of
adherence to them bespeaks a rickety structure which should
not be allowed to-endanger its supposed beneficiaries.
Moreover, the alleged practice is not as widespread as
alleged. General Electric has validly and without dispute
‘disclaimed adherence to any such practice. Union Carbide:
38
does not bargain for retirees and has not ever done so.
Other chemical companies do not bargain with their unions
for retirees or over retiree benefits. Numerous other com-
panies in a broad cross-section of American industry do
not bargain for retirees. The practice is, if it mdeed exists, .
far more scanty than assumed by proponents of its expan-
sion; indeed, perhaps for that reason the Board merely
cited a ‘‘need for bargaining’’ in this area. But to cite a
need for a particular practice is also to cite its current
absence.
A need, then, is not a practice but the very antithesis
thereof. And a practice does not change the law. The fact
that many people may violate traffic laws does not render
them automatically invalid; such a proposition would have
appeared too elementary to have even required restating.
But the Board evidently thinks otherwise; even though by
seeking to establish such a proposition it also is establishing
a two-edged sword. I€js all well and good to cite a ‘‘prac- °
tice’? in order to extend the law; but then it should be
equally well and good to cite a practice as warranting in-
validation of an existing law, however desirable. No one
has seriously contended for such a principle; yet it stands -
on no worse a footing than that for which the Board con-
tends. Laws are passed or repealed by legislatures, not by
adding up the sum of popular. practices, in the last analysis.
It is clear, therefore, that the practice of bargaining
over retiree benefits has not one scintilla of evidential sup-
port in the record and so, as a matter of law, cannot be
considered as any basis for the Board’s position. Yet its
posture contains clear indication that the Board relied
heavily on what necessarily: must remain a m®re non-factual
claim. The so-called practice cannot even be discerned from
the matter alleged in the sole source of such allegations, the
amicus curiae briefs. There is, also, substantial contrary
evidence available that the so-called practice is far from
being as widespread as claimed. Moreover, the two arbi-
39
tration awards cited are no support at all for the Board’s
conclusion. And, finally, even assuming what is obviously
not the case, that a practice exists, such practice cannot
expand the scope of the NLRA, or serve to revise the defi-
nition of ‘‘employee’’ therein. As the Court below states,
it forms no basis for changing the Act.
Conclusion
For the reasons set forth above, Union Carbide Corpo-
ration, as amicus curiae, respectfully urges that the petition
for review of the Court’s order below be denied.
EL EPS OGLE AER PI IN eS,
Respectfully submitted,
a)
»
Wittum C. Treanor
Joun W. Wuitt.esey
Attorneys for
Union Carbide Corporation
270 Park Avenue
New York, New York 10017
July, 1971 | :
ty. [ERR APTI LAER GS
werwemnonney
ad
41
APPENDIX
The relevant provisions of the National Labor Re-
- lations Act, as amended (61 Stat. 136, 73 Stat. 519, 29
U.S. C., Secs. 151, et seq.) are as follows:
Sec. 2. When used in this Act—
(3) The term ‘‘employee’’ shall include any em-
ployee, and shall not be limited to the employees of
a particular employer, unless the Act explicity states
otherwise, and shall include any individ@l whose
work has ceased as a consequence of, or in connection
with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any
other regular and substantially equivalent employ-
ment, but shall not include any individual employed
as an agricultural laborer, or in the domestic service
of any family or person at his home, or any individual
employed by his parent or spouse, or any individual
having the status of an independent contractor, or
any individual employed by an employer subject to
the Railway Labor Act, as amended from time to
time, or by any other person who is not an employer
as herein defined. |
-
Sec. 7. Employees shall have thé right to self-
organization, to form, join, or assist labor organiza- -
tions, to bargain collectively through representatives
of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargain-
_ Ing or other mutual aid or protection, and shall also
have the right to refrain from any or all of such
activities except to the extent that such right may
be affected by an agreement requiring membership .
in a labor organization as a condition of employment
as authorized in section 8(a) (3).
Sec. 8(a). It shall be an unfair labor practice
for an employer— i
(1) to interfere with, restrain, or coerce em-
ployees in the exercise -of the rights guaranteed in
Section 7;
*. * *
42°
(5) to refuse to bargain collectively with the tep-
resentatives of his employees, BUR jest to the provi-
sions Of section 9(a).
(b) It shall be an unfair labor practice for a labor
_ organization or its agents—
(3). to. refuse to bargain collectively with an em-
ployer, provided it is the representative of his em-
plovees pee to the provisions of Section 9(a);
* * *
(d) For the purposes of this section, io bargain
collectively is the performance of the mutual obliga-
tion of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotia-
tion of an agreement, or any question arising there-
under, and the execution of a written contract incor-
porating any agreement reached if requested by
either party, but such obligation does not compel
either party.to.agree to a proposal or require the
fnaking of a concession: Provided, That where there
* 1s in effect a collective- bargaining contract covering
employees in an industry affecting commerce, the
duty to bargain collectively shall also mean that no
party to such contract shall terminate or modify such
contract, unless the party desiring such termination
- or moadification—
(1) serves a written notice upon the other party
to the contract of the proposed termination or mod-
. ification sixty days prior to the expiration date
thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is
proposed to make such termination or modification ;
(2) offers to meet and confer with the other
party for the purpose of negotiating a.new contract
or a contract containing the proposed modifica-
tions; .
(3) notifies the Federal Med‘ation and Con-
ciliation Service within thirty days after such
notice of the existence of'a disput». und simultane-
Ps
43
ously therewith notifies any State or, Territorial
agency established to mediate and conciliate dis-
putes within the State or Territory where the dis-
pute occurred,*provided no agreement has been
reached by that time; and
(4) continues i*full force and effect, without
resorting to strike or lock-out, all thé terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract, whichever occurs
later. ;
The duties iraposed upon employers, employees, and
labor organizations by paragraphs (2), (3), and (4) |
shall become inapplicable upon an intervening cer-
tification of the Board, under which the labor or-
ganization or individual, which is a party to the
contract, has been superseded as or ceased to be the
representative of the employees subject to the provi-
sions of Section 9(a), and the duties so imposed shall
not be construed as requiring either party to discuss
or agree to any modification of the terms and econdi-
tions contained in a contract for a fixed period, if
such modification.is to. begome effective before such
terms and conditions can be reopened under the pro-
visions of the contract.
* * *
Sxo. 9(a). Representatives designated or selected
for the purposes of collective. bargaining by the
majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives.
of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages,
hoyfs of employment, or other conditions of employ-
mnt: ;
Relevant provisions of Title III of the Labor Manage-
ment Relations Act, 29 U. S. C. 186, are as follows: —
SEcTION 302(c). The provisions of this section shall
not be applicable
(5) with respect to money or other thing of value
paid to a trust fund established by such representa-
44
tive, for the sole and exclusive benefit of the em-
ployees of such employer, and their families and
dependents (or of such employees, families, and de-
*pendents. jointly with the employees of other employ-
‘ ers making similar payments, and their families and
dependents) : Provided, That (A) such payments are
held in trust for the purpose of paying, either from
principal or income or both, for the benefit-of em-
ployees, their families and dependents, for medical
or hospital care, pensions on retirement or death of
employees, compensation for ‘injuries or illness re-
sulting from occupational activity or-insurance to
‘provide any of the foregoing, or unemployment ben-
efits or life insurance, disability and sickness insur-
ance, or accident insufance;. (B) the detailed basis
on which such payments are to be made is specified
in a written agreement with the employer, and em-
ployees and employers are equally represented in the
administration of such.fund, together with such neu-
tral persons as the representatives of the employers _.
‘and the representatives of employees may agree
upon and in the event the. employer and em-
‘, ployee groups deadlock on the administration of
suth fund and there are no neutral persons empow-
ered to break such deadlock, such agreement provides
that the two groups shall agree on an impartial um-
pire to decide such dispute, or in event of their failure
to agree within a-reasonableé length of time, an im-
partial umpire to decide such dispute shall, on peti-
tion of either group, be appointed by the district
court of the United States for: the district where
the trust fund has its principal offie€, and shall also
contain provisions for an annual audit of the trust
fund, a statement of the results of which shall be.
available for inspection by interested. persons at
the principal office of the trust fund and at such other~
places as may be désignated in ‘such written, agree-
ment; and (C) such payments as are intended to be
- used*for the purpose of providing pensions or -annu-
ities for employees are madego a separate trugtwhich
provides that the funds held therein cannot be used
for any purpose other than paying such pensions or
“annuities; or (6) with respect ‘to money or ‘other
thing of value paid by any employer té a trust fund
established by such representative for the purpose
- _ WV :
sy
45 | oe
of pdoled vacation, holiday, severance or similar | »*
benefits, or defraying costs of apprenticeship or other ~*
training program: Provided, That the requirements
7 of clause (B) of the proviso to clause of this
| subsection shall apply to such trust funds.’ ., de
es
4
\
1 Section 302 (c) (6) was added by the r-Management Re-
porting and Disclosure Act of 1959, 73 Stat. 519, 537, 539, to remove
doubts theretofore existing as to apprentieeship and training pro-
grams and as to vacation, holiday, severance or similar benefits. H.
lop. No. 741, 86th Cong. Ist Sess., pp. 46-47, IJ Leg. Hist. of the
Labor- Management Reporting and Disclosure Act of 1959, Wash-
ington, 1959, pp. 804-805.
5
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