# Smith v. Evening News Association/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Black
United States Supreme Court
371 U.S. 195
Smith v. Evening News Association
Argued: Oct. 10, 1962. --- Decided: Dec 10, 1962
Mr. Justice BLACK, dissenting.
I would affirm the Michigan Supreme Court's holding that Michigan courts are without jurisdiction to entertain suits by employees against their employers for damages measured by 'back pay' based on discrimination, which discrimination § 8(a) of the National Labor Relations Act makes an unfair labor practice and which § 10(b) and (c) subject to the jurisdiction of the Labor Board with power after hearings to award 'back pay.' It is true that there have been expressions in recent cases which indicate that a suit for the violation of a collective bargaining contract may be brought in a state or federal court even though the conduct objected to was also arguably an unfair labor practice within the Labor Board's jurisdiction. It seems clear to me that these expressions of opinion were not necessary to the decisions in those cases and that neither these prior decisions nor § 301 of the Labor Management Relations Act requires us to hold that either employers or unions can be made to defend themselves against governmental regulation and sanctions of the same type for the same conduct by both courts and the Labor Board. Such duplication of governmental supervision over industrial relationships is bound to create the same undesirable confusion, conflicts, and burdensome proceedings that the National Labor Relations Act was designed to prevent, as we have interpreted that Act in prior cases like San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
One example is enough to show how Congress' policy of confining controversies over unfair labor practices to the Labor Board might well be frustrated by permitting unfair labor practice claimants to choose whether they will seek relief in the courts or before the Board. Section 10(b) of the Act provides that 'no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board * * *.' In contrast, the statute of limitations in Michigan governing breach of contract suits like this is six years. The Court's holding thus opens up a way to defeat the congressional plan, adopted over vigorous minority objection, to expedite industrial peace by requiring that both the complaining party and the Board act promptly in the initiation of unfair labor practice proceedings. Instead, by permitting suits like this one to be filed, it is now not only possible but highly probable that unfair labor practice disputes will hang on like festering sores that grow worse and worse with the years. Of course this Court could later, by another major statutory surgical operation, apply the six-months Labor Board statute of limitations to actions for breach of collective bargaining contracts under § 301. But if such drastic changes are to be wrought in the Act that Congress passed, it seems important to me that this Court should wait for Congress to perform that operation.
There is another reason why I cannot agree with the Court's disposition of this case. In the last note on the last page of its opinion, the Court says:
'The only part of the collective bargaining contract set out in this record is the no-discrimination clause. Respondent does not argue here and we need not consider the question of federal law of whether petitioner, under this contract, has standing to sue for breach of the no-discrimination clause nor do we deal with the standing of other employees to sue upon other clauses in other contracts.' Unless my reading of this note is wrong, the Court purports to reserve the question of whether an employee who has suffered the kind of damages here alleged arising from breach of a collective bargaining agreement can file a lawsuit for himself under § 301. Earlier in its opinion the Court decides that a claim for individual wages or back pay is within the subject-matter jurisdiction of courts under § 301, that is, that such a claim is of the type that the courts are empowered to determine. The Court then rejects respondent's argument that an individual employee can never under any circumstances bring a § 301 suit. But it seems to me that the Court studiously refrains from saying when, for what kinds of breach, or under what circumstances an individual employee can bring a § 301 action and when he must step aside for the union to prosecute his claim. Nor does the Court decide whether the suit brought in this case is one of the types which an individual can bring. This puzzles me. This Court usually refrains from deciding important questions of federal law such as are involved in this case without first satisfying itself that the party raising those questions is entitled (has standing) to prosecute the case. It seems to me to be at least a slight deviation from the Court's normal practice to determine the law that would be applicable in a particular lawsuit while leaving open the question of whether such a lawsuit has even been brought in the particular case the court is deciding. This Court has not heretofore thought itself authorized to render advisory opinions. Moreover, I am wholly unable to agree that the right of these individuals to bring this lawsuit under § 301 was not argued here.
Finally, since the Court is deciding that this type of action can be brought to vindicate workers' rights, I think it should also decide clearly and unequivocally whether an employee injured by the discrimination of either his employer or his union can file and prosecute his own lawsuit in his own way. I cannot believe that Congress intended by the National Labor Relations Act either as originally passed or as amended by § 301 to take away rights to sue which individuals have freely exercised in this country at least since the concept of due process of law became recognized as a guiding principle in our jurisprudence. And surely the Labor Act was not intended to relegate workers with lawsuits to the status of words either of companies or of unions.

## Notes

* ↑ Atkinson v. Sinclair Rfg. Co., 370 U.S. 238, 245, n. 5, 82 S.Ct. 1318, 1323, 8 L.Ed.2d 462 (1962); Local 174, Teamsters Union, etc. v. Lucas Flour Co., 369 U.S. 95, 101, n. 9, 82 S.Ct. 571, 575, 7 L.Ed.2d 593 (1962); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 525, 526, 7 L.Ed.2d 483 (1962).
* ↑ Atkinson v. Sinclair Rfg. Co., supra, note 1, involved a strike by union members over pay claims, in violation of an agreement to arbitrate grievances. Local 174, Teamsters Union v. Lucas Flour Co., supra, note 1, concerned a strike by the union over the discharge of an employee, in violation of an agreement to arbitrate such disputes. Dowd Box Co. v. Courtney, supra, note 1, was an action by union officers against a company for failure to put into effect pay increases and vacation benefits provided in a collective bargaining agreement. In my view, none of the activities in any of these cases were even arguably unfair labor practices subject to the Labor Board's jurisdiction, and the Court did not suggest that they were.
* ↑ Mich.Comp.Laws, 1948, § 609.13.
* ↑ Compare H.R.Rep. No. 245, 80th Cong., 1st Sess. 40 (1947) (majority view), with id., at 90 (minority view).
* ↑ The Government suggests that these years be further extended by requiring that, when cases are brought in a court, questions within the Labor Board's competence shall be referred to the Board. Dividing into two what should be a single proceeding will result in a shuttling operation which prior experience shows might not be settled for a decade. See, e.g., the protracted litigation which was finally concluded in El Dorado Oil Works v. United States, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053 (1946).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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