# National Labor Relations Board v. Lion Oil Company/Concurrence Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Frankfurter Harlan
United States Supreme Court
352 U.S. 282
National Labor Relations Board v. Lion Oil Company
Argued: Oct. 8, 1956. --- Decided: Jan 22, 1957
Mr. Justice FRANKFURTER, concurring in part and dissenting in part.
Agreeing as I do with the Court's construction of § 8(d) of the National Labor Relations Act, as amended, I join its opinion on that phase. But I do not think that the Court should now pass upon respondent's alternative defense of breach of contract, which the Court of Appeals did not reach because of its view of the statute. Perhaps that question is not open for judicial consideration. Section 10(e) of the Act provides that:
'No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.'
The Board has not raised the point here, and it is not clear from the record that respondent urged this objection before the Board. In any event, it is not for this Court in the first instance to construe this particular contract. In remanding the case I would therefore leave it to the Court of Appeals to determine: (1) whether respondent has complied with § 10(e); (2) whether in this contract an agreement not to strike is reasonably to be implied; and (3) whether respondent continued its employment relationship with the strikers and should on that account be subject to the consequences of its alleged unfair labor practices even if the strike was in violation of contract. Finally, it is for the Court of Appeals to judge whether the record as a whole supports the Board's findings of unfair labor practices. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456.
The inherent complications of the problem of statutory construction, as reflected in the conflicting views of the members of the Labor Board, make further discussion desirable, even though this may entail some repetition of what is said in the Court's opinion. Section 8(d) defines the duty of the employer and the union to bargain collectively. A long proviso in the section treats specifically of this duty where a collective-bargaining agreement is in effect. The proviso must be considered in its entirety:
'That where there is 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 modification-
'(1) serves a written notice upon the other party to the contract of the proposed termination or modification 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 modification;
'(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and
'(4) continues in full force and effect, without resorting to strike or lock-out, all the 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 imposed upon employers, employees, and labor organizations by paragraphs (2), (3), and (4) shall become inapplicable upon an intervening certification of the Board, under which the labor organization 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 provisions 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 conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer.'
The reasoned efforts of the five members of the Board and the three Circuit Judges whose task it has been to apply this proviso to the problem before us-where an economic strike occurs prior to the contract's termination but pursuant to its reopening provisions and after sixty days' notice-have produced four distinct interpretations of the Act. The Court of Appeals, relying on its privious decision in Wilson & Co. v. National Labor Relations Board, 8 Cir., 210 F.2d 325, adopted respondent's contention that 'expiration date' means termination date and that § 8(d)(4) therefore bans all bargaining strikes throughout the life of a collective-bargaining contract. The Board majority held that 'expiration date' also comprehends 'an agreed date in the course of (the contract's) existence when the parties can effect changes in its provisions * * *' and that § 8(d) prohibits all strikes during the life of the contract except those in support of bargaining pursuant to a reopening clause. Member Peterson adhered to the Board's former interpretation, see Wilson & Co., 89 N.L.R.B. 310, that so long as the union gives notice of its desire to modify the contract sixty days before striking, § 8(d) does not prohibit a strike at any time during the life of the contract. Finally, Member Murdock argued that § 8(d) 'applies only to the period around the expiration date of a contract,' which he defined to mean its termination date, and that prior to that period a union may strike without any notice whatsoever.
Such diverse interpretations, particularly by the authorities charged with the administration of the Act, reflect not only the ambiguity of § 8(d)'s language but also the obscurity of its legislative history. The fact is that the Taft-Hartley Congress did not reveal its 'intention' regarding our present problem-the legality of economic strikes prior to the contract's ending. It has thus become a judicial responsibility to find that interpretation which can most fairly be said to be embedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested.
The construction placed upon the proviso by the Court of Appeals-that it bans strikes throughout the life of the contract, even at reopening-seems least tenable. Although expiration is a common synonym for termination, § 8(d) does not use the terms interchangeably. It speaks repeatedly of 'termination or modification,' while 'expiration' seems to embrace both events. Moreover, this section provides that it
'shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract.'
This implies an affirmative duty to bargain during reopening. It is not to be assumed that Congress provided such a duty and at the same time foreclosed a potential strike, a conventional factor in the collective-bargaining process.
The meaning given to 'expiration date' by the Court of Appeals would make § 8(d) achieve other anomalous results. For example, where there is in effect a two-year contract providing for reopening after one year, the party proposing modification at reopening would not be required by § 8(d)(1) to serve notice upon the other party until ten months after reopening had passed, and § 8(d)(3) would not require notice to mediating agencies until eleven months after reopening. Similarly, the loss-of-status sentence, which applies to employees who strike 'within the sixty-day period specified in this subsection * * *,' would punish only employees who strike ten months following reopening.
Nothing in § 8(d)'s legislative history warrants such a strained construction. To be sure, at one point in the Senate debate Senator Taft did say that 'If such (sixty days') notice is given, the bill provides for no waiting period except during the life of the contract itself.' But Senator Taft's attention was directed solely to strikes at termination, and this statement was intended merely to emphasize the point made in the following sentence that if notice is given less than sixty days prior to termination the waiting period extends beyond the life of the contract.
Section 8(d)'s subsequent legislative history affords persuasive evidence that a reasonable interpretation of what the Taft-Hartley Congress legislated is that it allowed bargaining strikes at reopening if proceded by sixty days' notice. When, in 1948, the ambiguity in the statutory language was called to the attention of Congress, the Joint Committee on Labor-Management Relations, of which Senator Taft was a member, recommended a clarifying amendment in order to avoid the possibility that § 8(d) might be interpreted as either banning strikes at reopening or as permitting strikes prior to reopening. The Committee Report stated:
'In order that the parties may better know their rights in the matter, the committee recommends the adoption of the amendments which would permit a strike or a lock-out after a 60-day notice in support of demands they have anticipated in a reopening clause.' S.Rep.No. 986, 80th Cong., 2d Sess. 63 (1948).
In 1949, Senator Taft himself proposed such an amendment, S.Rep.No. 99, 81st Cong., 1st Sess. 27, 42 (1949), which was passed by the Senate, 95 Cong.Rec. 8717, but never became law.
At the opposite end of the statutory spectrum is Board Member Murdock's view that § 8(d) only bars strikes at termination, leaving unions free to strike without any notice whatsoever prior to the last sixty days of the contract. Ignoring the introductory paragraph of the proviso, which states: 'Where there is in effect a collective-bargaining contract * * * no party to such contract shall terminate or modify such contract, unless * * *,' Mr. Murdock urged that the rest of the proviso contemplates the situation 'around' the contract's 'expiration date,' which he defined as termination date. From this he inferred that § 8(d) only regulates conduct during this period.
If Mr. Murdock read 'expiration' to include reopening, his claim to have resolved § 8(d)'s logical inconsistencies would be more persuasive. The difficulty of his position is made manifest by the last part of the penultimate sentence of § 8(d), which clearly implies that the subsection applies to modifications under a reopening clause. The statement of Senator Ball, a leading proponent of § 8(d), that 'ours is a very mild provision, which merely says to unions, 'You must have a 60-day reopening clause in your contract',' 93 Cong.Rec. 7530, and § 8(d)'s subsequent legislative history, erase any doubt that it was intended to operate at least at reopening as well as at termination.
Even as thus revised the Murdock view is an artifact. It would permit a union, in an effort to force changes in its contract, to stop work without warning at any time except during the last sixty days of the period fixed by contract and to remain out for the length of the period short of its last sixty days. Yet Mr. Murdock mentioned no factors that would have made Congress so concerned about strikes at expiration as to lay down elaborate procedures applicable thereto and so unconcerned about strikes prior to the expiration period as to ignore them. The legislative history, on the other hand, makes clear that the dominant purpose of Congress in passing § 8(d) was one that is applicable to strikes at both times-to prevent the damaging effects of strikes without warning and to allow a cooling-off period during which differences might be discussed, mediated and resolved. See, e.g., 93 Cong.Rec. 3839, 5005, 5014. If anything, § 8(d)'s application would appear more necessary between expiration periods than during them, since the parties have by their contract warned each other of the possibility of work stoppage at the latter times.
It is significant also that the 1948 report of the Joint Committee on Labor-Management Relations, S.Rep.No.986, 80th Cong., 2d Sess. 62 (1948) which stated that § 8(d) was subject to three interpretations, did not mention Mr. Murdock's among them. Moreover, since the clarifying amendment proposed by the Committee was designed to preclude the possibility that § 8(d) might be construed to permit strikes at any time prior to reopening upon sixty days' notice, the Committee must have rejected, a fortiori, the possibility that § 8(d) permitted strikes at any time prior to reopening in the absence of such notice. The Murdock view was also rejected by the Board's General Counsel shortly after the Act's passage. He issued a complaint in the Wilson case, supra, even though the strike occurred more than nine months before the contract's reopening date. See 89 N.L.R.B. 310, 317, and S.Rep.No. 986, 80th Cong., 2d Sess. 62 (1948).
Mr. Murdock pointed out that the Senate Report on the Taft-Hartley bill stated, with respect to § 301, that a no-strike clause was something to be bargained for, S.Rep.No. 105, 80th Cong., 1st Sess. 17-18, and he reasoned that it would not have said this 'If it had been intended to remove no-strike provisions from the realm of collective bargaining * * *.' This argument would have force against an interpretation which actually does remove such provisions from bargaining. Section 8(d), however, has no effect on whether unions may validly strike over non-bargaining matters. See Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349. Nor does it render obsolete union pledges not to resort to bargaining strikes at reopening, if the present Board's interpretation is correct, or at any time after sixty days' notice, if the view of the former Board prevails. In any event, this statement from the Committee report on another section of the bill provides a flimsy basis for frustrating the oft-expressed legislative purpose of preventing 'quickie' strikes.
The question remains whether the old Board's interpretation is more persuasive than that of the present Board. The statutory language points toward the latter view-that § 8(d) not only proscribes strikes on less than sixty days' notice but also forbids strikes prior to reopening or termination. Section 8(d)(1) requires the party proposing a change in the contract to give sixty days' notice prior to 'expiration,' thereby implying that the proposed change will not take place until that time. Only in the event the contract contains no expiration date does this subsection provide for notice 'sixty days prior to the time it is proposed to make such termination or modification; * * *.' Section 8(d)(4) explicitly proscribes strikes 'for a period of sixty days after such notice (that provided for in (1)) is given or until the expiration date of such contract, whichever occurs later.' And the last part of § 8(d)'s penultimate sentence provides further evidence that Congress contemplated modification of the contract's terms only at reopening. The loss-of-status clause alone is more favorable to the former Board's view, since it speaks of 'the sixty-day period specified in this subsection,' and, to be effective under the present Board's construction, this clause has to be understood as reading 'the period specified in paragraph (4).' Since the problem before us was not anticipated, it is not surprising that § 8(d)'s legislative history offers little direct evidence that Congress did more than require a sixty-day waiting period prior to bargaining strikes. When the Joint Committee did note the problem in 1948, however, it adopted the present Board's view of the statute and not that of the old Board. The light which this subsequent history sheds on the ambiguity reinforces the present Board's construction as the more persuasive interpretation of § 8(d).
As the Court's opinion holds, since the union struck more than sixty days after giving notice of its desire to amend and in the course of negotiations pursuant to the contract's reopening clause, the Court of Appeals erred in setting aside the Board's order on the ground that the strike violated the waiting requirements of § 8(d).

## Notes

* ↑ Section 10(f) specifies that this rule shall apply where judicial review of a Board order is obtained by an aggrieved person.
* ↑ Senator Taft's full statement was:
'We have provided in the revision of the collective-bargaining procedure, in connection with the mediation process, that before the end of any contract, whether it contains such a provision or not, either party who wishes to open the contract may give 60 days' notice in order to afford time for free collective bargaining, and then for the intervention of the Mediation Service. If such notice is given, the bill provides for no waiting period except during the life of the contract itself. If, however, either party neglects to give such notice and waits, let us say, until 30 days before the end of the contract to give the notice, then there is a waiting period provided during which the strike is an unlawful labor practice for 60 days from that time, or to the end of the contract and 30 days beyond that time. In that case there is a so-called waiting period during which a strike is illegal, but it is only brought about by the failure of the union itself to give the notice which the bill requires shall be given. So it seems to me to be no real limitation of the rights of labor unions.' 93 Cong.Rec. 3839.
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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