# Carey v. Westinghouse Electric Corporation/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinion Black
United States Supreme Court
375 U.S. 261
Carey v. Westinghouse Electric Corporation
Argued: Dec. 11 and 12, 1963. --- Decided: Jan 6, 1964
Mr. Justice BLACK, with whom Mr. Justice CLARK joins, dissenting.
The International Union of Electrical Workers (IUE), of which petitioner is president, and another union, the Federation, each have collective bargaining contracts with and are certified bargaining agents for employees of the respondent, Westinghouse Electric Corporation. IUE's contract covers 'all production and maintenance' employees, but not 'salaried technical' employees. Federation's contract covers 'all salaried, technical' employees but not 'production and maintenance' employees. IUE demanded that Westinghouse stop permitting a number of Federation employees to do certain work, claiming that what they were doing was 'production and maintenance' work and that therefore IUE's members, not Federation's, were entitled to these jobs. Westinghouse refused to make the change, whereupon IUE, instead of filing an appropriate proceeding to have the dispute decided by the National Labor Relations Board (as I understand the Court to hold that it could have done), called on Westinghouse to arbitrate the dispute with IUE. This demand rested on a provision of the IUE Westinghouse contract agreeing to arbitration of grievances growing out of the 'interpretation, application or claimed violation' of the contract. Westinghouse resisted arbitration, contending that the dispute ought to be resolved by the National Labor Relations Board, and the Court of Appeals of New York, agreeing with Westinghouse, refused to compel Westinghouse to arbitrate.
I agree with the New York court and would affirm its judgment. Stripped of obscurantist arguments, this controversy is a plain, garden-variety jurisdictional dispute between two unions. The Court today holds, however, that the National Labor Relations Act not only permits but compels Westinghouse to arbitrate the dispute with only one of the two warring unions. Such an arbitration could not, of course, bring about the 'final and binding arbitration of grievance(s) and disputes' that the Court says contributes to the congressional objectives in passing the Labor Act. Unless all the salutary safeguards of due process of law are to be dissipated and obliterated to further the cause of arbitration, the rights of employees belonging to the Federation should not, for 'policy considerations,' be sacrificed by an arbitration award in proceedings between IUE and Westinghouse alone. Although I do not find the Court's opinion so clear on the point as I would like, I infer that it is not holding that this misnamed 'award' would be completely final and binding on the Federation and its members. What the Court does plainly hold, however-that 'the weight of the arbitration award is likely to be considerable, if the Board is later required to rule on phases of the same dispute'-seems only a trifle less offensive to established due process concepts. And this means, I suppose, that this same award, ex parte as to Federation, must be given the same or greater weight in any judicial review of the Board's final order involving the same 'phases of the same dispute.'
Moreover, the Court holds that suits for damages can be filed against the employer in state courts or federal courts under § 301 of the Taft-Hartley Act, 29 U.S.C. § 185, for the 'unfair labor practice' of failing to bargain with the right union when two unions are engaged in a jurisdictional dispute. The employer, caught in that jurisdictional dispute, is ordinarily in a helpless position. He is trapped in a cross-fire between two unions. All he can do is guess as to which union's members he will be required by an arbitrator, the Labor Board, or a court to assign to the disputed jobs. If he happens to guess wrong, he is liable to be mulcted in damages. I assume it would be equally difficult for him to prophesy what award an arbitrator, the Labor Board, or a judge will make as to guess how big a verdict a court or a jury would give against him. It must be remembered that the employer cannot make a choice which will be binding on either an arbitrator, the Board, or a court. The Court's holding, thus subjecting an employer to damages when he has done nothing wrong, seems to me contrary to the National Labor Relations Act as well as to the basic principles of common everyday justice.
The result of all this is that the National Labor Relations Board, the agency created by Congress finally to settle labor disputes in the interest of industrial peace, is to be supplanted in part by so-called arbitration which in its very nature cannot achieve a final adjustment of those disputes. One of the main evils it had been hoped the Labor Act would abate was jurisdictional disputes between unions over which union members would do certain work. The Board can make final settlements of such disputes. Arbitration between some but not all the parties cannot. I fear that the Court's recently announced leanings to treat arbitration as an almost sure and certain solvent of all labor troubles has been carried so far in this case as unnecessarily to bring about great confusion and to delay final and binding settlements of jurisdictional disputes by the Labor Board, the agency which I think Congress intended to do that very job.
I would affirm.

## Notes

* ↑ 11 N.Y.2d 452, 230 N.Y.S.2d 703, 184 N.E.2d 298.
* ↑ See National Labor Relations Board v. Radio & Television Broadcast Engineers Union, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302; cf. Order of Railway Conductors v. Pitney, 326 U.S. 561, 567, 66 S.Ct. 322, 90 L.Ed. 318.
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).
Public domainPublic domainfalsefalse