# Radio Officers' Union of Commercial Telegraphers Union, AFL v. National Labor Relations Board/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinion Black
United States Supreme Court
347 U.S. 17
Radio Officers' Union of Commercial Telegraphers Union, AFL v. National Labor Relations Board
Argued: Nov. 9, 10, 1953. --- Decided: Feb 1, 1954
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
No. 7-The Gaynor Case.-Eighteen years ago the language considered here became a part of what is now known as § 8(a)(3) of the Labor Act. The Court today, gives that language an entirely new interpretation. I dissent. The Section makes it an unfair labor practice for an employer 'by discrimination in regard to * * * any term or condition of employment to encourage or discourage membership in any labor organization * * *.' Unquestionably payment of disparate wages to union and nonunion employees is 'discrimination' as that term is used in § 8(a)(3). But the Section does not forbid all 'discrimination.' It carefully limits the conditions under which 'discrimination' is 'unfair.' The plain and long accepted meaning of § 8(a)(3) is that it forbids an employer to discriminate only when he does so in order to 'encourage or discourage' union membership. National Labor Relations Board v. Waterman S.S.C.o., 309 U.S. 206, 219, 60 S.Ct. 493, 500, 84 L.Ed. 704. Recently, however, the Labor Board has adopted the view that the Section outlaws discrimination merely having a 'tendency to encourage * * *' or 'the natural and probable effect' of which would be to encourage union membership. The Court apparently now accepts this interpretation, for here there is no finding that Gaynor acted in order to encourage union membership. Indeed, the Board concedes that Gaynor had no such purpose, and this concession is fully supported by the evidence. Gaynor had no desire to make retroactive payments to any employees. It yielded to the union not because it wanted to but because it was compelled to by a collective bargaining contract.
I think the Court's new interpretation of § 8(a)(3) imputes guilt to an employer for conduct which Congress did not wish to outlaw. Behind the Labor Act was a long history of employer hostility to strong unions and affection for weak ones. Power over wages, hours and other working conditions permitted employers to help unions they liked and hurt unions they disliked. To enable workers to join or not join unions without fear of reprisal, Congress passed the Labor Act prohibiting such employer discrimination. But aside from this limitation on the employer's powers, Congress did not mean to invade his normal right to fix different wages, hours and other working conditions for different employees according to his best business judgment. Section 8(a)(3) is aptly phrased to accomplish both these purposes.
The Board has been careful in § 8(a) (3) cases to make findings that employer discrimination was motivated by hostility or favoritism toward union membership.
Even now trial examiners and the Board continue to make findings as to the employer's purpose. The courts have regularly held that § 8(a)(3) requires such findings, and have been called on to determine if they were supported by substantial evidence. I think the Section should not at this late date be held to penalize an employer for using his judgment in fixing working conditions unless he discriminates among employees in order to strengthen or weaken a union for his own advantage. For this reason, I would not sustain the Board's holding that Gaynor violated § 8(a)(3).
Nos. 5 and 6-The Radio Officers and Teamsters Cases.-In these cases the Board found that the Radio Officers and Teamsters unions had violated § 8(b)(2) of the Taft-Hartley Act which makes it an 'unfair labor practice' for a union 'to cause or attempt to cause an employer to discriminate against an employee in violation' of § 8(a)(3). The Board found on sufficient evidence that each of the two unions here 'caused' an employer to treat an employee differently from the way it treated other employees, that is, the employer was caused 'to discriminate' within the meaning of § 8(a)(3). The Board also found that this 'discrimination' had a tendency to encourage union membership. But there was no finding that either employer's discrimination occurred in order to encourage union membership. For the reasons set out in my discussion of § 8(a)(3) in the Gaynor case, I think these findings fall short of showing an employer 'violation of § 8(a)(3).' A union does not violate § 8(b)(2) by causing an employer to discriminate unless that employer discrimination is 'in violation of § 8(a)(3).' For this reason I would reverse No. 5 and affirm No. 6.

## Notes

* ↑ National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 45-46, 57 S.Ct. 615, 628, 81 L.Ed. 893; Phelps Dodge Corp. v. National Labor Relations Board, 1941, 313 U.S. 177, 182-183, 61 S.Ct. 845, 846, 847, 85 L.Ed. 1271.
* ↑ See, e.g., Fruehauf Trailer Co., 1 N.L.R.B. 68, 74-77 (1935), sustained, 1937, 301 U.S. 49, 55-57, 57 S.Ct. 642, 643, 644, 81 L.Ed. 918; Union Pacific Stages, Inc., 2 N.L.R.B. 471, 486 (1936), enforced as modified, 9 Cir., 1938, 99 F.2d 153, 168, 176 177; Kansas City Power & Light Co., 12 N.L.R.B. 1414, 1436-1453 (1939), enforced as modified, 8 Cir., 1940, 111 F.2d 340, 349-351; Martel Mills Corporation, 20 N.L.R.B. 712, 721, 724, 733 (1940), enforcement denied, 4 Cir., 1940, 114 F.2d 624, 630-633; Air Associates, Inc., 20 N.L.R.B. 356 (1940), enforced as modified, 2 Cir., 1941, 121 F.2d 586, 591-592; Stonewall Cotton Mills, 36 N.L.R.B. 240 (1941), enforced as modified, 5 Cir., 1942, 129 F.2d 629, 632-633; Western Cartridge Co., 48 N.L.R.B. 434 (1943), enforced as modified, 7 Cir., 1943, 139 F.2d 855, 858-860; Robbins Tire and Rubber, Co., 69 N.L.R.B. 440, 441, (1946), enforced, 5 Cir., 1947, 161 F.2d 798, 801; Wells, Inc., 68 N.L.R.B. 545, 546 547 (1946), enforced as modified, 9 Cir., 1947, 162 F.2d 457, 459 460; Victor Mfg. & Gasket Co., 79 N.L.R.B. 234, 235 (1948), enforced, 7 Cir., 1949, 174 F.2d 867, 868; B & Z Hosiery Products Co., 85 N.L.R.B. 633 (1949), enforced, Bochner v. National Labor Relations Board, 3 Cir., 1950, 180 F.2d 1021. To support its position here that an employer's purpose is irrelevant under § 8(a)(3) the Board relies on its decisions in General Motors Corp., 59 N.L.R.B. 1143, 1145 (1944), enforced as modified, 3 cir., 1945, 150 F.2d 201; Allis-Chalmers Mfg. Co., 70 N.L.R.B. 348, 349-350 (1946), Enforced, 7 Cir., 1947, 162 F.2d 435; and Reliable Newspaper Delivery, Inc., 88 N.L.R.B. 659, 669-670 (1950), enforcement denied, 3 Cir., 1951, 187 F.2d 547. In the first two decisions specific findings of employer purpose were made, and in the latter the facts are substantially identical to the case here.
* ↑ E.g., in Marathon Electric Mfg. Co., 106 N.L.R.B. No. 199 (September 29, 1953), the trial examiner found that numerous acts of an employer violated § 8(a)(3) because the employer 'discriminated * * * to discourage membership in UE. * * *' In sustaining the examiner as to some of the acts and overruling him as to others the Board's decision rested on such findings as: 'the discharges were not only calculated to discourage concerted activities * * * but also to deter * * * from joining, or giving support in the future to; UE or any other labor organization'; the record did not show 'that the failure to recall them (certain employees) was because of their actual or supposed connection with UE'; and there was 'no evidence in the record to rebut the Respondent's (employer's) contention that its only reason for not recalling these employees was the cancellation of the contract.' See also New Mexico Transportation Co., 107 N.L.R.B. No. 8 (November 13, 1953); Terri Lee, Inc., 107 N.L.R.B. No. 141 (December 28, 1953).
* ↑ See court decisions cited in note 2, supra. See also National Labor Relations Board v. Waterman S.S.C.o., 1940, 309 U.S. 206, 218, 220-226, 60 S.Ct. 493, 500, 501, 503, 84 L.Ed. 704, where this Court reviewed the record and held that a finding of discrimination by an employer 'because of' union membership was sustained by substantial evidence. Republic Aviation Corp. v. National Labor Relations Board, 1945, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, indicated no intent to repudiate the interpretation of § 8(a)(3) accepted in the Waterman case, supra. The Board also relies on such cases as: National Labor Relations Board v. Hudson Motor Car Co., 6 Cir., 1942, 128 F.2d 528, 532-533, enforcing 34 N.L.R.B. 815, 826-827 (1941); National Labor Relations Board v. Gluek Brewing Co., 8 Cir., 1944, 144 F.2d 847, 853, modifying and enforcing 47 N.L.R.B. 1079, 1095 (1943); and National Labor Relations Board v. Industrial Cotton Mills, 4 Cir., 1953, 208 F.2d 87, modifying and enforcing 102 N.L.R.B. 1265 (1953). However, none of these cases is in point here, since in each the Board made findings of the employer's purpose.
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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