# Amicus Curiae Brief — Chemical Workers v. Pittsburgh Plate Glass Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1971
- **Citation:** 404 U.S. 157

## Text

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LABOR RELATION
L DIVISION, et.
10. THE

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‘PITTSBURGH

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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

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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

SAU | SBT NGM eile BEY lial PLETE AOA TIRE TA A ae eto he

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. 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0349%3A11. Public record. Not legal advice.