Earl Warren: Number 44, Local Lodge No. 1424, et al., Petitioners, versus National Labor Relations Board. Mr. Dunau.
Bernard Dunau: May it please the Court. There are two questions in this case, one of limitations, the other of remedy. The limitations question can be put in a nutshell. Section 10 (b) of the National Labor Relations Act provides in part 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 and the service of a copy thereof upon the person against whom such charge is made. An employer and a union enter into a collective bargaining agreement, by which, the Union is recognized as the exclusive bargaining representative and which contains a conventional union shop agreement or provision. The agreement is, in all respects, valid on its face. However, at the time it was entered into, the Union did not represent a majority of the employees within the unit. More than six months later, an unfair labor practice charge is filed. Based upon that charge, a complaint issues and the Board finds that within the six-month period, the company and the Union continued the agreement in effect and executed and continued a second agreement in effect, and these acts within the six-month period constitute unfair labor practices. The sole foundation for the conclusion that the acts within the period constitute unfair labor practices are the unfair labor practice of entering into the agreement when the Union had no majority which occurred more than six months before the charge was filed.
Speaker: Was there a charge based on the original making of the agreement?
Bernard Dunau: Yes, sir. The charges were based upon the original making of the agreement.
Speaker: So stated?
Bernard Dunau: In so many words, Your Honor. The amended charge stated -- the original charge against the company and the amended charge against the Union stated in so many words, inter alia, at the time of the execution of this collective bargaining agreement on August 10, 1954, the Unions were not unassisted and/or majority representatives of the employees in the unit.
William J. Brennan, Jr.: Is that charge in the record?
Bernard Dunau: Yes, Your Honor, it is.
Speaker: Where?
Bernard Dunau: The charge against the Union, the first one, appears on page 260, the charge against the employer on 263 and the amended charge against the Union on page 265. The complaints themselves, inter alia, alleged that the -- at the time of the entry into the first agreement and at the time of the entry into the second agreement, the Union did not in fact represent a majority of the employees within the bargaining unit. It was solely upon the basis of that unfair labor practice which antedated the charge by more than six months that the complaint -- that the conduct within the six months period was adjudicated to be an unfair labor practice.
Charles E. Whittaker: Is it correct, however, to say, Mr. Dunau, that the gravamen of the action was the making of that contract or that this was what the basis upon which it is insisted by the Board continuing effects within the six months became unlawful?
Bernard Dunau: The Board reasons that it is adjudicating the continuing effects within the six months and that it is entitled to rely upon the entry into the agreement more than six months before as the foundation for finding that the acts within the six months are unfair labor practices.
Charles E. Whittaker: Thank you.
Bernard Dunau: And so, our question is whether the six-month period of limitations precludes reliance upon a barred unfair labor practice as the foundation for finding their conduct within the six-month period is an unfair labor practice.
Charles E. Whittaker: Is it your position then, that the limitation is one of extinguishment or one of limitations?
Bernard Dunau: Our position is that once the six-month period has gone upon an unfair labor practice, liability for that unfair labor practice is extinguished and that you cannot taint later conduct in reliance upon an act which has been barred by limitations. Now, what happened here? In July of 1954, the company requested -- the Union requested the company to recognize it as the bargaining representative. After discussions amongst the company officials, the company decided to extend recognition to the Union. And so, on August 10, 1954, a collective bargaining agreement was entered into between the company and the Union. The agreement contained a conventional recognition clause by which the Union was accredited as the bargaining representative. It contained a conventional union shop clause by which employees were required to join the Union within 45 days of employment. It contained a conventional check-off clause by which the employer was authorized upon the individual authorization of each employee to check-off union dues and fees and to remit them to the Union. The agreement was, in all respects, conventional. It contained the management functions clause. It provided for hours in overtime. It had a grievance procedure culminating an arbitration. It provided for a five-cent per hour wage increase immediately and it deferred increase of five cents within four months. However, the Board found that on August 10, 1954, when this agreement was entered into, when recognition was extended to the Union, the Union did not represent a majority of the 148 employees who were employed at the Reading plant of the company which was the unit covered by this agreement. About a year later, a second agreement was entered into between the company and the Union. The original plant, the Reading plant, it had been planned, would operate with about 150 to 200 employees. The company expanded its operations. It had about 350 employees. It acquired a second plant about 12 miles away and a new agreement was entered into which enlarged the unit to cover both plants, the original Reading plant and the second Hillsdale plant. There is no issue in this case about the propriety of this expansion. That is conceded. The unit properly covers both plants. The agreement was altered in order to provide for seniority in the two plants as a single seniority area for the purposes of those employees who had in -- been employed at the Reading plant and would have been transferred to the Hillsdale plant to man that plant.
Charles E. Whittaker: May I ask you.
Bernard Dunau: Yes, sir?
Charles E. Whittaker: Is there any evidence of finding as to whether, at the time of the execution of the second contract, the Union represented the majority of employees?
Bernard Dunau: It is, I think, agreed that within the period of limitations, the Union at all times represented the majority of the employees. There is no -- I cannot say that there is a finding audit. The finding runs this way, that no majority which the Union secured subsequent to August 17, 1954 can be regarded as a valid -- no, majority which the Union secured subsequent to August 17, 1954 can be regarded as a valid majority because of the original entry into the agreement with a minority union. But --
Charles E. Whittaker: As I understand it then, all employees who had been hired subsequent to the original time track fell within this 45-day union shop provision.
Bernard Dunau: That's correct, sir.
Charles E. Whittaker: And all did actually then, at least, paid dues.
Bernard Dunau: That's correct. All --
Charles E. Whittaker: I understand.
Bernard Dunau: -- all would be members of the Union so that, within the six-month period, there would be no question that all employees were union members.
Charles E. Whittaker: Thank you.
Felix Frankfurter: Is your position, Mr. Duanu, that whatever illegalities there may have been was completely exhausted or had exhausted itself before the six-month period began to run? Is that the essence of your (Inaudible)?
Bernard Dunau: No, I will not say -- no, I'm not going to say that the effect of that conduct had exhausted itself. The Board usually finds that the effect continues and may continue for an indeterminate period until an order is entered which redresses the law.
Felix Frankfurter: So inanimate -- so inanimate effect in nature unrelated to what you mean it did?
Bernard Dunau: Well --
Felix Frankfurter: What do you mean the effect continued?
Bernard Dunau: The theory is that once the will of the employees has been trammeled by unfair labor practices, we cannot assume that anything they do thereafter represents their untrammeled will and hence, that the effect, the -- the damage to their free choice remains uncured.
Felix Frankfurter: That means what the employer did preceding the six months continued with his will or with his -- with his ascent and to that extent, it's collaboration within the six-month period.
Bernard Dunau: Well, I shall try to demonstrate that if -- in the course of the argument --
Felix Frankfurter: Suppose that was so. Suppose you'd agreed to my statement, would it be outside or inside the statute of limitations?
Bernard Dunau: Even if I were to agree that the effects of the initial unfair labor --
Felix Frankfurter: Not the effects. The effects not as a consequence of natural phenomenon, but through the conscious advantage taking of what preceded the six months continued with the employers' ascent or collaboration and to that extent, participation within the six months assumed. And I think that is the situation.
Bernard Dunau: Well, if I can --
Felix Frankfurter: There must be some human intervention. I'm talking about human intervention --
Bernard Dunau: If I can freely --
Felix Frankfurter: -- and not merely natural phenomenon.
Bernard Dunau: There was nothing subsequent to August 10, 1954 which could conceivably be regarded as an unfair labor practice. There was no human intervention subsequent to that initial act which can be regarded as an unfair labor practice by the employer or the Union.
Felix Frankfurter: Excluding taking advantage of what has been done before.
Bernard Dunau: Unless one says that continuing the agreement, in effect, executing and continuing a second agreement, in effect, in other words, unless one says that maintaining the bargaining relationship after its inception was, itself, an unfair labor practice within the six-month period, there is nothing in this case beyond the first act.
Felix Frankfurter: The fruit of the tree doctrine, you say, wouldn't apply.
Bernard Dunau: This is what I have called the effect of the unfair labor practice, yes, sir.
Speaker: Turning it around the other way, for a minute, as I understand it, if the original agreement has not been infected as it was, there would have been no basis for an unfair labor practice charge.
Bernard Dunau: Not -- none whatsoever, Your Honor.
Speaker: On the other hand, what would be the basis of authority for the check-off of dues and compulsory membership except for the contract?
Bernard Dunau: The check-off on dues --
Speaker: Yes.
Charles E. Whittaker: See -- let's take within the last -- the period preceding -- the six-month period preceding the institution of this -- this charge.
Bernard Dunau: Yes, sir.
Charles E. Whittaker: We just -- the dues are being checked off.
Bernard Dunau: That's correct, sir.
Charles E. Whittaker: And on what basis?
Bernard Dunau: The dues were being checked off pursuant to the individual authorization of each employee which was provided for in the agreement. The amended --
Charles E. Whittaker: Compelled by it, weren't they?
Bernard Dunau: No, sir. The check-off was not compelled because the check-off simply authorized individual employees to permit the employer to check-off the dues. Any employee who decided not to have his dues checked off could have that arrangement and pay the dues himself. However --
Felix Frankfurter: We do not --
Bernard Dunau: -- the payment of the dues, whether by check-off or directly to the Union, was contractually compelled.
Charles E. Whittaker: And also, membership.
Bernard Dunau: Well, under the Taft-Hartley Act, when one says membership is compelled, one really means only that the payment of dues is compelled. No other aspect of union membership can be enforced under the Taft-Hartley Act, so that union membership and dues payment are really the same thing under the statute. Now, the -- a second agreement, as I have said, was entered into. The agreement was to accommodate the acquisition of the two plants. It provided for a wage increase of 31-cents, 15-cents the first year, 8-cents the second year, 8-cents a third year. Other adjustments were made in the bargaining relationship to correspond to a year's experience under the contract. Now, meanwhile, on June 10, 1955, the first unfair labor practice charge in this case was filed. For our purposes, we can ignore all other unfair labor practice charges. Based upon that charge, a complaint was issued and the Board found that the conduct within the six-month period maintaining the first agreement in effect and executing and maintaining the second agreement in effect for unfair labor practices and that it was free to rely upon the initial act of extending recognition and contracting with the Union which had occurred more than six months before to tank the conduct within the six-month period. Now, let's test that first by the words of the statute. If you count back six months from June 10, 1955, you get to December 10, 1954 and that's your six-month line. Conduct forward of that is properly within -- may properly be adjudicated by the Board. Conduct, in fact, of it is barred by limitations. If you take the conduct forward, as I have said, there is not a semblance of an unfair labor practice. All you have is the administration of an agreement valid on its face. All you have is the execution and administration of a second agreement valid on its face. The agreements providing conventional benefits and containing conventional union shop provisions. So this completely blameless situation forward of December 10 has to be tainted, if it is to be tainted at all, by what occurred prior to December 10. And what occurred prior to December 10 was more than six months before. Now, what happened prior to December 10? On August 10, 1954, the Union did not have a majority. That, in itself, is not the relevant fact. There is in every case a point of time when a union does not have a majority and is in the process of procuring one. The relevant fact is that at a time when the Union did not have a majority, exclusive recognition was extended to it and this fact is relevant because it constitutes the unfair labor practice of assisting a union and abridging a free choice. Now, what do we have then? We have this unfair labor practice on August 10, 1954, more than six months before the charge was filed. This was an unfair labor practice. It was filed -- it was -- the charge was filed more than six months before its commission and Section 10 (b) could not state more plainly than it does. That no complaint shall issue based upon any unfair labor practice occurring more than six months before the filing and service of the charge. In this case, the complaint is based upon nothing but an unfair labor practice which occurred more than six months before the filing and the service of the charge.
Felix Frankfurter: Mr. Dunau.
Bernard Dunau: Yes, sir?
Felix Frankfurter: Would you be good enough to tell us what the theory, the philosophy, the reasoning matters of industrial relation? What theory or consideration that lie behind the substantive rule whereby the Board is authorized to direct employer to undo influencing the formation of an organization and liberty and free choice. What is the theory behind that?
Bernard Dunau: Well, the theory is that the statute contemplates that a bargaining relationship shall not be entered into except with a union which represents a majority of the employees and it means an uncoerced majority.
Felix Frankfurter: And that -- but the basis of the order of the Board to undo that and not give it effect starts with the assumption that there's a momentum --
Bernard Dunau: That is correct, sir.
Felix Frankfurter: -- which does the damage and continues its -- its illegal influence, isn't that right?
Bernard Dunau: That is correct, sir. It is the --
Felix Frankfurter: Now --
Bernard Dunau: -- the -- the theory is that the damage occurred, the -- the trammeling of a free choice continues until something happens.
Felix Frankfurter: The employer must take affirmative steps to undo, is that right?
Bernard Dunau: According to the Board, unless the employer withholds and withdraws recognition, at least until the Board certifies the Union after an election, there is no basis for saying --
Felix Frankfurter: Then why does the -- why does that consideration or that thinking not applied to this kind of situation?
Bernard Dunau: Because the basis for the notion that the free will of the employees has been trammeled is -- requires a finding that an unfair labor practice was committed. In this case, it requires the finding that the company and the Union entered into a bargaining relationship when the Union had no majority --
Felix Frankfurter: And --
Bernard Dunau: -- if the Board is not entitled to make that finding because limitations have run upon that act.
Felix Frankfurter: But that's -- that's what -- your statement means that the Board is, as a -- by rule of law, prevented from recognizing a fact. Is that right?
Bernard Dunau: It is prevented from recognizing the consequence of an unfair labor practice by a statute of limitations which extinguishes the liability for it.
Felix Frankfurter: Well, that's the -- that's the thing that we have to decide.
Bernard Dunau: Yes, sir.
Felix Frankfurter: So, he can't decide it by assuming it's correct.
Bernard Dunau: Well, neither can we decide it by saying that because the consequence of an unfair labor practice continues with the -- within the six-month period that, for that reason, we can look to the Act which precedes the six-month period to determine the cause of that kinds of question.
Felix Frankfurter: And if I was as simpleminded as all that.
Bernard Dunau: I'm sure you are not, sir.
Felix Frankfurter: I'm not suggesting -- I was asking why the consideration that leads to that aggressive, if you please -- if I please, rather aggressive power authorized to the Board, compelling the employer to take affirmative action on the assumption that something that took place long ago persisted and therefore, it's still operating. That's a fact. I mean, the -- the law in that -- I think is derived from the experience in the industrial world. Is that right?
Bernard Dunau: Yes, sir.
Felix Frankfurter: Would it be at trial?
Bernard Dunau: That is correct.
Felix Frankfurter: Now -- so that's what I call a fact --
Bernard Dunau: Yes, sir.
Felix Frankfurter: -- fact of industry. I want to know why that type of industry is outlawed by a rule of -- by -- by the construction you give to the statute.
Bernard Dunau: Well, of course, that --
Felix Frankfurter: And that's why I say you're saying that something that in fact operates within the six months may not be considered because that's the way the statute of limitations can be construed.
Bernard Dunau: That, of course, was --
Felix Frankfurter: That's what it gets down to.
Bernard Dunau: It's the burden of my whole argument.
Felix Frankfurter: All right.
Bernard Dunau: That you cannot look to the effect -- well, as I said, it's the burden of my --
Felix Frankfurter: You call it the effect and I call it a persisting fact.
Bernard Dunau: And -- and all -- and whether we call it one or the other, what we still have to get back to in the end is whether this 10-month -- this six-month period of limitations bars the Board from finding the initial fact. And if it bars it, then it has no basis for saying that there's anything which continues that there is any operative fact within the six-month period.
Felix Frankfurter: Well, the -- I think the difference in our statements has gone to this. You -- you say whether the -- whether it can consider an unfair labor practice that preceded the six months. And my question is why does the more realistic way of looking at things, that it didn't precede but continues?
Bernard Dunau: Well, and I shall try to demonstrate that in the course --
Felix Frankfurter: All right.
Bernard Dunau: -- of the argument, sir.
Felix Frankfurter: I think the plain meaning of Section 10 (b) bars the adjudication of this complaint for, as I have said, there is nothing in this complaint but an unfair labor practice preceding the six-month period. And it seems to us that the purpose of the limitations period requires a reading in accordance with its plain meaning. Now, the general six-month period of limitations was newly enacted in 1947, except for an important area which I will come to presently. There were no limitations in effect under the original Wagner Act. Now, the enactment of limitations were sharply opposed and criticized because it would permit unfair labor practices to go un-redressed, particularly in that six months was the shortest statute of limitations known to the law. But the view prevailed in Congress that there must be a limitation as to time and that six months is time enough within which to bring the matter to the attention of the Board. Well, in this case, it wasn't brought to the attention of the Board until 10 months later. That was four months too long. That barred the Act. That is what a statute of limitations means. If, in this case, 10 months is not too long, then 20 months is not too long and 30 months is not too long and 40 months is not too long. If, in this case, one can upset a bargaining relationship after the second agreement, there is no reason why it cannot be upset after the third agreement, after the fourth agreement and after the fifth agreement. And I am --
Felix Frankfurter: What time -- time period had the Board acted on with reference to the substantive provision of law in which you and I agree --
Bernard Dunau: There --
Felix Frankfurter: -- namely that the momentum must be affirmatively start.
Bernard Dunau: No time limit whatsoever, Your Honor.
Felix Frankfurter: Even for years?
Bernard Dunau: For years, Your Honor, and I will cite a case which just was decided relatively recently which will illustrate precisely what I mean. There is no time limit unless the six months provides that time limit. A charge was filed in a case called Lively Photos, Inc. three years and eight months after the agreement, the first agreement was entered into. The basis for the charge in that case, as in this case, was that at the time the agreement was first entered into, the Union had no majority and that was all there was in that case and that's all there is in this case. Based upon that charge filed three years and eight months after the event, the Board almost five years after the first agreement was entered into, found the fact to be that the Union had no majority, entered an order severing the bargaining relationship. So in that case, almost five years after the first agreement was entered into, the Board still said the momentum persisted, and this was upon the basis of a charged file three years and eight months after the first contract was entered into.
Felix Frankfurter: Is this a board case or a board case?
Bernard Dunau: This was a board case, Your Honor, before the National Labor Relations Board. It appears on pages 32 to 33 of our brief. Now, this is logical because if you can pierce the six-month limitation by four months, there's no reason why you cannot pierce it by three years and two months. Either there is a six-month line or there is no line.
Earl Warren: How long does that policy prevails, Mr. Dunau?
Bernard Dunau: I know of no case, Your Honor, that has been adjudicated in which the Board has ever said that the mere lapse of time alone suffice that this fail any unfair labor practices. Now, it is possible, of course, that in the regional offices themselves, when charges were filed, perhaps complaints are not issued if too long a period of time has elapsed, but that must be a very long period of time, indeed, because if we judge from a recent -- the recent Lively Photos case, it's five years at least, and the Board still says the momentum continues.
Earl Warren: I mean, where is the first -- when was the first case that they pierced this statute of limitation?
Bernard Dunau: Oh, in a bargaining situation, the case before the Court is the first one in which they pierced the statute of the -- the six-month period.
Felix Frankfurter: Well, the others -- of course, there are different kinds of unfair labor practices, if you fire an employee in a discriminatory fashion --
Bernard Dunau: Well --
Felix Frankfurter: -- you've got a very different situation. It's a much more isolated phenomenon, isn't it? So you said it out of work.
Bernard Dunau: I would --
Felix Frankfurter: You said it out of work.
Bernard Dunau: -- I would hesitate to say, for example, that if in a unit of 50, the employer were to fire 5 or 10 per union activity, that the impact of the discharge of those 5 or 10 lasted less long but it was less drastic than a bargaining relationship entered into less than the majority.
Felix Frankfurter: I would hesitate to overrule the Board in making the finding to that effect.
Bernard Dunau: And I think the Board would, if I recall its decisions correctly, place considerable more emphasis upon the -- a discriminatory discharge as having a momentum than the other way around. I do not --
Felix Frankfurter: I didn't mean -- I didn't mean as to recognizing the Union but as to the effect on the Union, but as to reinstating the employee on -- on his complaint after a six-month period.
Bernard Dunau: The rule is that if he has not filed his charge within six months of his dismissal, that is barred.
Felix Frankfurter: That -- and the Board has so --
Bernard Dunau: The Board has so held --
Felix Frankfurter: So that there is a -- that's precisely the -- I didn't know that's --
Bernard Dunau: Yes, sir.
Felix Frankfurter: -- the ruling, but I had assumed that would be so. The difference between an isolated, enclosed --
Bernard Dunau: No, sir --
Felix Frankfurter: -- situation such as firing John Smith and having him sue non -- to bring -- bring proceedings then on plaintiff.
Bernard Dunau: No, it can't be regarded -- if -- that is not the explanation, Your Honor, because the Board has also held that the six-month period of limitations is applicable in this type of situation. Assume a union is company-dominated, that is the employer has assisted it by such unfair labor practices that the Board says this is the company's own creature. But all the acts which prove domination occur more than six months before the charges filed. The Board holds that you cannot adjudicate the company dominated origin of that union if the charge was filed more than six months after the events. Now, certainly, the momentum of a company-dominated labor organization is at least as great as the momentum that it comes from a bargaining agreement with a labor organization which is not at all company-dominated.
Felix Frankfurter: What is the -- what is the distinction they make through the District Court?
Bernard Dunau: I don't understand the distinction.
Felix Frankfurter: Well, don't they --
Bernard Dunau: They do not -- they do not explicate a distinction, Your Honor.
Earl Warren: When was that case decided, Mr. Dunau?
Bernard Dunau: The one I've just --
Earl Warren: The one you just told us about, yes.
Bernard Dunau: Those are given in our briefs at pages 52 to 53. Judging from the volumes of the Boards, they began in 88 NLRB which would have been shortly after the 1947 amendments. I have a case which is 108 which would be around 52 or 53.
Felix Frankfurter: Where is that page, Mr. Dunau?
Bernard Dunau: This is on pages 52 to 53 of our brief, Your Honor. And there are other situations which we have also indicated where the effect of the conduct or the consequence of the unfair labor practice as a continuing one. This is the only case and the only situation which the -- I know of that the Board says, because the relationship is continuing, the six-month period does not run. Now, if that is true, as I have said, not only is there never a period of time for which repose applies to a bargaining relationship. It is impossible in that kind of a situation to fulfill the purpose of the statute of limitations. If it never runs, then, as the House Report put it, what it was after, what the Congress was after was to obviate the evil of delayed litigation. “After records have been destroyed, witnesses have gone elsewhere and recollections of the events in question had become dim and confused.” This is the conventional pragmatic justification for a statute of limitations. If it never runs, then you always have and increasingly have the risk of litigation upon the basis of lost evidence, but that isn't even the most fundamental consideration because more fundamental than the pragmatic situation of lost evidence is the principle of repose itself. The idea is that if a period of time has elapsed without a relevant charge or complaint or proceeding being instituted, the status quo is stabilized. He who is -- thinks he suffers a wrong ought to be diligent to enforce it. He who thinks he has a right ought to be -- he who suffers a wrong ought not to be forever under the anxiety of a lawsuit and disruption of a status quo, and he who thinks he has a right ought to be diligent to enforce it. Now, this was a dominating purpose of Congress in this situation because the six-month period itself, by its very shortness, indicates that the dominating purpose of Congress was to bring surcease to these controversies to quiet them if they weren't made the subject of a charge within six months. Well, you can never quiet a controversy. You can never validate a bargaining relationship if though more than six months has passed since its inception and though the only thing that is wrong with it is a misstep in its origin, it is nevertheless perpetually vulnerable. This is incompatible with any concept of repose that a statute of limitations is supposed to bring about.
Hugo L. Black: How long did -- how long was this contract supposed to exist?
Bernard Dunau: The first agreement had a two-year term. After the first year of the term, it then had -- the second agreement was entered into for a three-year term, and that's where the record stops.
Hugo L. Black: Does the Board's holding mean that if it's gone in entire two years, it could have found it an unfair labor practice six months after its expiration?
Bernard Dunau: I would suppose that the Board would say -- well, I know what -- the Board says the six-month never -- period never runs so long as the initial agreement or any successor agreement remains in effect. So, so long as you have a continuing bargaining relationship, the six-month period never runs. Now, presumably, if there were a --
Hugo L. Black: Even if -- even if you make one agreement and then you meet and make another?
Bernard Dunau: That is not relevant under the --
Hugo L. Black: You make another, it has to be -- they could be found guilty for unfair labor practice within the time after six months from the last day the contract was in effect?
Bernard Dunau: Yes, sir. That is -- so long as there is a second agreement which succeeds the first agreement, yes, sir. So long as there is any bargaining relationship in existence, the Board will continue to hold that there is no limitations which runs on that relationship.
Hugo L. Black: What was the object of this six months limitation? Does the record show what Congress had in mind in that?
Bernard Dunau: Congress had in mind, as it said, we give the employee or anyone else who feels that an unfair labor practice has been committed six months within which to file the charge. If the charge is not filed within that period, that puts an end to the complaint, the practice, the wrong about which the charge of -- would bring to the attention of the Board. It was a conventional statute of limitations that Congress was enacting and it made six months the period in which --
Hugo L. Black: How far back does this repayment order extend in this case?
Bernard Dunau: The Board begins the repayment order six months preceding the filing of the charge. It recognizes the working of the statute of limitations to the extent that it will not require the refund of moneys more than six months before the filing of the charge. But its seize and desist orders and its affirmative orders in other respects go all the way back to the beginning and they severe the bargaining relationship exclusively upon the basis of the Act which occurred more than six month before the charge was filed. Now, actually, Congress has left very little to the imagination in this situation because the Senate Report which accompanied Section -- which explains Section 10 (b), and this is on page 36 of our brief, said this, “The Board itself, by adopting a Doctrine of Latches, has, to some extent, discouraged adulatory filing of charges and a rider to the current appropriations bill which it -- which if this amendment was adopted would no longer be necessary, contains a three-month period of limitations with respect to certain kinds of unfair labor practices. Now, the rider to the current appropriations bill which the Senate -- to which the Senate Report referred said this in part, “No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement or a renewal thereof between management and labor which has been in existence for three months or longer without a complaint being filed by an employee.” So that the Senate Report referred to the appropriations bill wrier which explicitly said, “If three months go by without a charge filed, you cannot prosecute a complaint over that agreement.” Now, this was not new. This limitations rider or one substantially like it had been in each Board appropriation act since 1943. So that for four years preceding the -- the adoption of a general statute of limitations in 1947, the riders to the Board's Appropriations Act had barred the Board from using funds to prosecute a complaint over an agreement if o charge had been filed within three months of the agreement and other conditions of the riders were met.
Hugo L. Black: Is it the position of the Board that this does not arise over the agreement or the renewal of agreement which arises on the maintenance of the agreement from time to time, is that it?
Bernard Dunau: No, sir, they don't try to explain away this history in this way, and I -- I just don't know how they explained it away. As I understand it, they say something like this, “We -- a -- the six months does not run with respect to an agreement which is invalid on its face.” Now, this is a separate situation from the one we have here, which is an agreement valid on its face but invalid because there was something wrong with its inception. And then, they say, under the limitations riders, the -- the period would have run even as to an agreement valid on its face and so, they conclude the limitations riders had broader scope than Section 10 (b) as enacted and therefore, we cannot look to the limitations riders as a guide to what Congress meant. To this -- to me, this makes little sense because the one thing that is certain about this limitations rider is that it was initially adopted in 1943 to meet just the situation of agreements valid on their face which were entered into with a union which did not have majority support. If --
Hugo L. Black: Where is that distinction drawn? You referred to it plainly.
Bernard Dunau: Between an agreement valid on its --
Hugo L. Black: Valid on its face and one that's not valid on its face.
Bernard Dunau: Well, that is --
Hugo L. Black: Is that drawn in the Act or is that --
Bernard Dunau: No, sir, that is --
Hugo L. Black: (Voice Overlap) --
Bernard Dunau: -- drawn by interpretation from the statute. The theory is, and we do not contest this, that if you have an agreement invalid on its face, you do not need anything more than proof of that agreement to show an unfair labor practice. You do not have to look to any events more than six months refiling of a charge.All you have to do is introduce the agreement into evidence. It is a fact existing today and in effect today and therefore, you -- the limitations have not begun to run on it. Now, the only --
Potter Stewart: It would be a closed-shop agreement.
Bernard Dunau: A closed-shop agreement, yes, sir. It would be one invalid on its face. All you have to do is you introduce the agreement and you've proven your case and it is not a reliance upon an unfair labor practice occurring more than six months before. It is in existing today unfair labor practice proved by the existence of the agreement in effect today and on its face today, it is an unfair labor practice.
Potter Stewart: No matter when the -- that agreement might have been (Voice Overlap) --
Bernard Dunau: It doesn't matter when the agreement was entered into. And the only relevance of the notion of continuing violation in such a situation is to refute the defense that because the agreement was executed more than six months before, its continuance in existence is barred by limitations.
Hugo L. Black: I suppose the agreement --
Bernard Dunau: Yes, sir.
Hugo L. Black: -- provided that there'll be discrimination on account of race or color or religion.
Bernard Dunau: Well --
Hugo L. Black: Is that the type of thing you're talking about?
Bernard Dunau: Well, this would be an agreement invalid on its face --
Hugo L. Black: Invalid on its face. That's what I'm talking about.
Bernard Dunau: But -- I hasten to add, not an agreement which would be within the competence of the Board to adjudicate since racial discrimination is not the sort of thing that the Board is concerned with. The conventional invalid on its face agreement with which we deal here is one which provides for union security in excess of the maximum permissible under the statute which would be, as Mr. Justice Stewart suggested, one which had a closed-shop provision or --
Hugo L. Black: You mean the kind -- what I suggested would be invalid on its face?
Bernard Dunau: Oh, it would be invalid on its face. All I'm suggesting is that though it's invalid on its face, it's not the kind of agreement which the Board is concerned with because it doesn't redress racial discrimination agreements. It's concerned only with union discrimination agreements.
Charles E. Whittaker: Mr. Dunau, may I ask you (Inaudible)
Bernard Dunau: No, sir, it doesn't take a written contract.
Charles E. Whittaker: Now, then suppose this conduct was obviously (Inaudible) as to whether that would be a daily violation of law?
Bernard Dunau: I still think it's the same situation because whether it's the written contract or whether it's a practice which has -- and being without a written contract, you still have to go back to the inception of the relationship to show that though, let us say, exclusive recognition was granted without a written contract, nevertheless, the only thing wrong with it was that it was the relationship was begun with a union which did not have a majority, so that the writteness or the oralness of the arrangement is not material to what we conceive as the basic factor here, namely, that you still have to go back to a barred unfair labor practice in order to set in motion any kind of a view of conduct being invalid within the six-month period.
Charles E. Whittaker: We can't conclude that this very conduct, under such an illegal oral understanding, was in view of that.
Bernard Dunau: Well, again, it's a -- it depends upon -- let me -- I think this is perhaps the argument which the Court of Appeals below was suggesting, although it didn't put it in terms of the written or oral arrangement and, I think -- I might just as well illustrate what I think is very -- what is just lifting one's self by one's own bootstraps. The Court of Appeals said that dues payment and union membership was -- were contractually compelled. And this contractual compulsion of dues payment and union membership occurred within the six-month period. These were unfair labor practices and violations, and because they were unfair practices and violations, the Board was permitted to go behind this six-month period. But what the Court of Appeals called unfair practices and violations are the conventional manifestations of the administration of any union security agreement. Every union security agreement contractually compels union membership and the payment of dues. That is its function. That is precisely what is permitted to a union security agreement. Well, you can't call these acts unfair practices and violations in order to justify breaching the six-month period because your justification, legal justification for calling them unfair practices or violations only occurs after you have already breached the period. In other words, you cannot use the barred unfair labor practice as your reason for saying “I -- therefore, I can look at it.” That's just --
Hugo L. Black: Let me try, and I think you could help me with your point the -- to the exact wording of the Act --
Bernard Dunau: Yes, sir.
Hugo L. Black: -- in which one would we have to rely to determine whether when the contract was made, it's an unfair labor practice or whether there's a daily unfair labor practice. Everyday, contract stays in existence, it was originally unfair.
Bernard Dunau: I could not point to anything in the words of the statute, Your Honor.
Hugo L. Black: Is there anything in the words of the statute which shows the unfair -- that it's an unfair labor practice to make the contract?
Bernard Dunau: Well, the -- it's reasoned in this fashion. Let us take the Section 8 (a) (2) violation. That makes it an unfair labor practice for an employer to assist a labor organization. Section 8 (a) (1) makes it an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of their right to choose a bargaining representative. The theory is that when you enter into an exclusive bargaining relationship with a union which does not have a majority, you have assisted that labor organization and you have interfered with and restrained and coerced the employees in the exercise of a free choice. There is nothing more specific in the statute than that. Now, as I have said, the limitations provision seem to us -- the riders to the current appropriations bill or the appropriation bills seem to us to be decisive that there is an doubt because under those riders, there was just no question. This was the Board's interpretation and application of the riders. This is what the -- was plain on the floor of the Congress in both Houses when those riders were enacted. If three months went by without a complaint being -- without a charge being filed, that terminated liability or -- no complaint could issue based upon that agreement. Now, what the Board has to be saying, therefore, is that when Congress enacted a six-month period of limitations applicable to all unfair labor practices, it was, at the same time, eliminating the already existing applicability of limitations to agreements. We do not think this is a possible interpretation.
Potter Stewart: The existing limitation has found the appropriation.
Bernard Dunau: That is correct, sir.
Potter Stewart: Now, limitation of, what, three months, was it?
Bernard Dunau: Three months, Your Honor. And once the Congress enacted the general six-month period of limitations, it discontinued the appropriations riders -- the riders in the Board's Appropriations Act and this was consistent with the report -- the explanation in the Senate Report. When we had a six-month period of limitations, the riders would no longer be necessary. Well, under the Board's interpretation, the riders continued to be necessary. Now, how does the Board get there? It gets there, first, by saying Section 10 (b) is not a rule of evidence. It is a statute of limitations, and we agree. It also says Section 10 (b) does not preclude receipt in evidence of events which transpired before the six-month period, and we agree. It then says, because we can receive in evidence events which occurred more than six months before, we are, therefore, free to adjudicate this conduct within the six-month period exclusively upon the basis of the barred unfair labor practice, and that's where we part company because the receipt in evidence of events which occurred more than six months before has always been subject to the important limitation that you can receive such evidence for background purposes only but you cannot give that evidence independent and controlling significance to find that unfair labor practice within the six months. Well, here, obviously, the initial unfair labor practice was not received as background evidence. It doesn't even give it sufficient scope to say it was received. It was given independent and controlling significance. It was given exclusive significance but, for that unfair labor practice, there's nothing within the six-month period. And so, upon the basis of what the Board and the Courts of Appeals have themselves said with respect to receipt in evidence or antedating evidence, we agree it can come in for background. It didn't come in, in this case, for background. It came in as the exclusive basis for adjudicating their right. Now, the further basis upon which the Board says that the six-month period can be breached is that this is a continuing violation. Well, I, in part, explain the concept of continuing violation that is we can adjudicate a complaint valid on its -- invalid on its face. Therefore, there's -- we can adjudicate with one valid on its face because there's no difference between the two. We think there's a world of difference between the two because with one which is invalid on its face, you do not have to go to any events six months before the charge. With one valid on its face, you do and, because you do, we think six -- the Section 10 (b) operates. I've also explained why the distinction drawn by the Court of Appeals, namely, that these are unfair labor practices or violations within the six-month period will not wash. The other explanation that we now have, and this is the third variation of the concept of continuing violation is the one in the Board brief. The Board brief says that we agree that execution of the agreement is barred by limitations but continuance or enforcement of the agreement is not. The distinction, as I understand it, is that the execution of the agreement is a completed and consummated act when it takes place, therefore, limitations run as to it. The enforcement is not a complete act. It is a continuing act and therefore, limitations do not run. What it seem -- it seems to us that what this contention does is to separate the consequence of the unfair labor practice from the unfair labor practice. For the underlying unfair labor practice is rendering assistance to a union by recognizing and contracting with it when it does not half a majority. The consequence of that unfair labor practice is to invalidate both the -- invalidate both the execution of the agreement and the enforcement of the agreement to say that the limitations run as to the execution but not as to the enforcement. It's to have your period of limitations run from the result of the wrong, the damage, the consequence. It seems to us that a limitations period must run from the wrong and not from the result. If one is hit by a negligently driven car, your limitations run from the blow. They do not run from the damages of -- disappearance of the damages as a result of the blow. If one has a permanent injury, it surely does not mean that limitations never run during the light of that dictum. The same is true, it seems to us, of an unfair labor practice. The consequences of an unfair labor practice linger after its commission.
Charles E. Whittaker: (Inaudible) under a health ordinance, contract of this kind, payable monthly towards (Inaudible) Doesn't the cause of action there accrue monthly?
Bernard Dunau: I don't know, Your Honor.
Charles E. Whittaker: I think there is no analogy.
Bernard Dunau: Offhand, I do not see it. I am not prepared to say there is none but offhand, I do not see it. Now, it seems to us that the answer to the Labor Board's argument in its brief was stated by Judge Simons in a non-labor board case. He said, “If this sort of an argument prevails, if this were not true, that is, if limitations did not run from the wrong, if this were not true, in every case where damages resulting from a long -- from a wrongful act are, in their nature, continuing, there would be no limitation upon the right of action and the beneficent purpose of the statute to put a period to the right to sue would be defeated. Now, we didn't cite that case. If the Court would like to see it, it's 73 F.2d. 333, 335. It seems to us that when all is said and done, what -- what -- one gets down to is that under the Board's view of Section 10 (b), limitations never run on a bargaining relationship once there is a misstep in its origin.
Speaker: Could you give me the citation of that?
Bernard Dunau: Yes, sir. It's 73 F.2d. 333 and the quotation is at 335.
Hugo L. Black: Is that in your brief?
Bernard Dunau: No, sir. That is not in our brief.
Hugo L. Black: Could you give it again?
Bernard Dunau: 73 F.2d. 333 at 335. It seems to us that no interpretation of a limitations provision which results in a situation where it never runs can possibly be a valid interpretation of a limitations provision. Now, if we are right as to this --
Felix Frankfurter: Well, if you --
Bernard Dunau: Yes, sir.
Felix Frankfurter: It may stop running or it -- it may begin to run, as it were, because the force of the compulsion, it's a totally different question, may have ceased to operate so that when the employer says “I'll give you a job, provided you join a union,” which union has come into being not for free choice and the involuntariness of the organizations still persist, it isn't merely a consequence that run but it is the position of the employer saying “I won't give you a job unless you join this congenitally illegal enterprise.”
Bernard Dunau: Well, Your Honor, if that were sound, then the Board was wrong when it said, as to company-dominated labor organizations, that so long as the charge was not filed more than six -- within the six months of the acts which created the dominative character, that dominated origin of the organization can no longer be adjudicated because --
Felix Frankfurter: I don't mind saying that's the most impressive part of your argument and I'm waiting to hear before you explain that.
Bernard Dunau: Because whether -- it's not simply, for example, collecting dues on behalf of an organization which is assisted. Any act by a labor organization in its role as exclusive representative is a wrongful act if, in fact, that labor organization has no right to operate as an exclusive representative.
Felix Frankfurter: And that no right to operate may persist so it origin merely -- may merely persist although its origin may be outside of the statute --
Bernard Dunau: It may --
Felix Frankfurter: -- precede the six months.
Bernard Dunau: It may indeed persist, and our point is --
Felix Frankfurter: And therefore, if it persists and the employer insist upon the subjection of that illegality to its employment policy, then you haven't got just a natural operation of nature but you've got the in dimensionally human being say “I won't give you this job unless you do something” which, by your answer, has obtained.
Bernard Dunau: Well, I repeat what I have already said.One has no right to say that any act in effectuation of that agreement or in effectuation of the bargaining relationship is a wrongful act unless one has a right, first, to determine whether the relationship was wrongly conceived in the first instance. If one has no right to determine the relationship or its inception in the first instance, one has no basis for saying that the operative human intervention within the six-month period was an unfair labor practice or was not an unfair labor practice. It seems to us that no matter which way you cut this baby, you still come back to the primary consideration that you have to adjudicate an unfair labor practice outside the period and you still come back to what I think is what is, for me, the conclusive factor that on this reading of a statute of limitations, it never runs and I cannot conceive that that is a sound reading of a statute of limitations. Now, if we are right as to this, that ends the case. If we are wrong, we reach the question of remedy which I fear I shall have no time at all to discuss. The question of remedy, however, is an extremely important one. The Board says that when the Board ordered the company and Union, jointly and severely, to refund to the employees the initiation fees and dues which had been paid by them to the -- which have been checked off by the employer pursuant to an individual check-off authorization. The Board's theory for saying that the money should be refunded is that when employees pay money pursuant to a union security agreement, they are paying it voluntarily. But for the union security agreement, they would not have paid the money, and since the involuntarism is rooted in an invalid agreement, we have a right to require the refund of the dues and the fees. Now, there was a time when Congress acted on this assumption. There was a time when Congress thought that dues payment pursuant to a union security agreement was coerced payment. And so, in 1947, it provided that no union or employer could enter into a union security agreement unless an election had first been conducted amongst the employees to determine whether they wish to authorize entry into that agreement. About four years later, Congress repealed that provision. It is now permissible for an employer and a union to enter into a union security agreement without an election. And the reason, the reason for the repeal was simple. It was the experience which had been found by Congress during the intervening four years in which such elections were held. Over 46,000 such elections were held. Over five million employees were polled. In 97% of the elections, the -- the employees authorized the Unions to enter into union security agreements and the margins of victory were just as impressive. They ranged, in one year, from 87%, to another year, 94% and so, Congress was persuaded that employees do not involuntarily pay dues pursuant to the terms of a union security agreement, that they do not involuntarily pay them, as was demonstrated by their overwhelming authorization of a contractual obligation to pay. And so, it seems to us that the premise upon which the Labor Board acts is fundamentally false and that what it is really doing is not remedying the wrong. It is attempting to punish its commission. It is attempting to coerce compliance by a staggering financial responsibility. And I just want to emphasize this by telling the Court of a case which the Board decided on December 28, 1959, which appears at 45 Labor Relations Reference Manual 1223. The Board has finally --
Speaker: (Inaudible)
Bernard Dunau: 45 L.R.R.M. 1223. It's Lummus Corporation, L-U-M-M-U-S. The Board has finally said what has been painfully obvious for a long time, that its current use for the refund order is not to remedy a wrong but to prevent its commission, to deter its commission. It says this. “Finally, we believe that a mere seize and desist order will have little impact in an industry where illegal hiring practices are widespread. The reimbursement remedy more properly effectuates the purposes of the Act because it provides not only a deterrent to future violations but an incentive to future compliance.” What the Board is, therefore, doing is using a money remedy as a fine. It says, “If you do not comply, you will be fined,” and there is no necessary relationship at all between -- between the wrong for which the refund is ordered and the reason that the Board is ordering the refund.
Earl Warren: Mr. Come.
Norton J. Come: May it please the Court. The facts here show that in August of 1954, at a time when the Union did not represent a single employee and indeed, had made no effort to organize them, the company and the Union entered into a collective bargaining contract. The contract required the Union -- require -- recognized the Union as the employees' exclusive bargaining representative. It compelled the employees as a condition of maintaining employment to join the Union within 45 days and to remain members in good standing. And to implement the latter provision, it provided that upon receipt of a signed authorization of the employee, the company would check off each month the initiation fees and dues payable to the Union.
Speaker: May I interrupt you there for a moment?
Norton J. Come: Yes, Your Honor.
Speaker: Assuming this agreement contained no security at all and entered into (Inaudible) would that be an unfair labor practice?
Norton J. Come: Yes, Your Honor, it -- it would have.
Speaker: (Voice Overlap) --
Norton J. Come: To accord recognition to a -- exclusive recognition to --
Speaker: Accord to what?
Norton J. Come: To a minority union.
Speaker: Now, assuming again you waited more than six months and you have brought the unfair labor practice charge that you brought here on such a (Inaudible) on your theory?
Norton J. Come: I think, under the Board's theory, you could have, Your Honor.
Speaker: You could have.
Norton J. Come: Yes, sir.
Earl Warren: Is this a new theory or is this a principle the Board has acted on through the years?
Norton J. Come: I do not think that it is a new theory, Mr. Chief Justice, because from the beginning, the enactment of 10 (b), the Board has taken the view that it is a statute of limitations and not a rule of evidence. The effect of it is to bar a liability for an unfair labor practice committed in the past but not to preclude the Board from looking at relevant evidence in the past for the purpose of shedding light on conduct that is occurring within the limitations period. Indeed, quite early in the Board's experience with 10 (b), you had a number of cases where the union security clause in the contract was defective, in that, instead of providing for 30 days within which to become a union member, it required that you had to become a union member immediately or some lesser period. These contracts were entered into outside the six months period but they continued to be enforced within the limitations period. The Board took the position and every Court of Appeals that has considered the question sustained the Board in the view that since the contract continued to be enforced, the statute of limitations in 10 (b) had not even begun to operate. Now, the -- it is true that in those cases, the illegality of the union security clause was apparent on the face of the contract, but that was not the rationale on which the Court sustained the Board. The rationale was that you had a continuing unfair labor practice going on so long as the contract continued to be enforced for the simple reason that it has been well-established, at least in the Courts of Appeals, that where you have a contract that compels union membership as a condition of employment, you have a violation of the Act not only at the time that you execute the contract. The reason for that is that you are forcing the employees to risk discharge if they do not join the Union but thereafter, each time that you enforced the contract, enforce employees to pay dues under that contract or discharge them for failure to do so, you are further invading their statutory rights. Now, the closest case --
Hugo L. Black: How many violations then do you get out of the violations that comes from making contract as illegal? How many violations would be every day, every week, every month or what?
Norton J. Come: Every time that you enforce the contract, Your Honor.
Hugo L. Black: (Voice Overlap) --
Norton J. Come: Probably every --
Hugo L. Black: You enforce it every --
Norton J. Come: Every month.
Hugo L. Black: -- everyday it goes on, don't you, every morning?
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: It's good for you.
Norton J. Come: Well --
Felix Frankfurter: It's good occasionally to go back to the terms of a statute in which we are concerned. The statute says based upon any unfair labor practice occurring.
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: Occurring. And I take it your task is to convince this Court that things occurred during the six months -- within the six months not merely that it's interpreting what did occur, you can draw on what preceded the six months. Now, what occurred -- the mere fact that the contract runs isn't an occurrence and that's it, is it? The mere fact that the contract subsists, could you call that an occurrence in answer to Justice Black's question? You indicated yes, the mere fact that the contract prevailed. I wouldn't call that an -- something occurring.
Hugo L. Black: Do you accept that?
Norton J. Come: Well, I think the fact that the contract continues in effect, it does exert a continuing coercion on the employees but you certainly --
Hugo L. Black: What about every day when they collect dues because I have --
Norton J. Come: But you certainly do not have anything as dramatic or tangible as when you are collecting dues under this contract each month. And what occurs there is -- is certainly not in the realm of speculation.
Hugo L. Black: It's a violation.
Norton J. Come: That is correct, Your Honor. Each month, these employees had to pay dues to the Union. If they didn't pay dues to the Union, they would be discharged for that.
Charles E. Whittaker: Now, is it true that each day the time tracks pose longer than it exists, does it not operate?
Norton J. Come: Well, I think that it -- it does, Your Honor, but I don't think that we have to reach that in this case because you have the union security clause here which is certainly operating in a very immediate sense each month when dues are paid. Employees could have been discharged under this contract. The mere fact that under -- on this record, non-order doesn't change the realities of the situation because, as I understand petitioners' position, it would be the same. We couldn't even reach those discharges.
Felix Frankfurter: Now, if the contract subsisted, it's still there, a piece of paper, no modification, no repudiation, no nothing, nothing's going up but the employer didn't collect the check-off and nothing was done about it, it was foregone, you wouldn't say that there was something of occurring then, would you?
Norton J. Come: I think it is possible to say that there would not be and I think that that is the rationale of the Board's decisions in the company union cases that Mr. Dunau has cited. Since they have occurred a number of years before this decision, I don't know to what extent the Board continues to adhere to them but assuming that they do represent the Board's position, I think they are compatible with its position in this case because, in those cases, all you had was the contract subsisting. It entered into the contract with the dominated union and then left things alone. The Union just operated under the contract but there was no provision for check-off of dues and the company didn't do anything to further the original acts that gave the Union that contract. I think that it is possible to draw a distinction along those lines.
Felix Frankfurter: But if he -- if the employer refuse to employ somebody who refused to join the Union, that was company-dominated union, if it took a step of refusing employment --
Norton J. Come: Then you --
Felix Frankfurter: -- that would be just the same kind of an occurring as check-off --
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: -- (Voice Overlap) an occurring.
Norton J. Come: Yes, Your Honor, and there was nothing like that.
Felix Frankfurter: Are there cases -- are there cases in which a company union, concededly a company union was operating in the plant, who is in the plant?
Norton J. Come: Oh, yes, I --
Felix Frankfurter: (Voice Overlap) was taken by the employer to enforce obedience to that arrangement with this company union.
Norton J. Come: I think that there are, Your Honor, and --
Felix Frankfurter: I meant, just like this.
Norton J. Come: I think it would be. The cases that Mr. Dunau refers to, however, are cases in which nothing like that was done. I --
Felix Frankfurter: Do you have one in your brief where that has been done with reference to a company union as to the statute of limitations, would you call my attention to them so I can see them?
Norton J. Come: I do not recall that I have one in my brief, Your Honor. I would be glad to locate one and submit it to the Court after --
Hugo L. Black: I'm not challenging. I -- I simply want to see it.
Norton J. Come: Yes, Your Honor.
Hugo L. Black: But you may refuse.
Norton J. Come: Surely.
Felix Frankfurter: Well, why does the -- in the memorandum in which you submit that, would you make your observations on the cases to which Mr. Dunau refers?
Norton J. Come: Yes --
Felix Frankfurter: The company-dominated union.
Norton J. Come: Yes, Your Honor, I will.
Felix Frankfurter: But you do agree that you have to have what -- in order to have an occurring, an intervention by the employer of some sort or other and not merely that the subsistence is something that began prior to the six months? Do you agree with that or don't you?
Norton J. Come: Well, I would say that the latter situation would make a much harder case, Your Honor.
Hugo L. Black: Do you decide to be wholly before you at this time?
Norton J. Come: I think our case, though, is the -- is the case where the -- well, there is something occurring here.
Speaker: You still have to know the facts in order to obtain what you say is a recurring act to the enforcement of the check-off and you -- you still have to go back in order to taint that within the period of limitation by the original vice that inhered in this contract.
Norton J. Come: There is no question that you do, Your Honor, but that in itself, we submit, is -- is not enough to run a file of 10 (b) because we are not predicating any liability based upon those past acts.
Speaker: Without any liability at all. Independently of that, you don't have a case.
Norton J. Come: But, Your Honor, you don't have a case in a number of other situations in which the Court of Appeals have -- has sustained the Board's position. For example, I give you the situation in -- in the Paramount Cap case in the Eighth Circuit where an employee is discharged within the limitations period. The employer says he's discharged for cause. Now, you look at the employer's reasons and it doesn't seem to be caused but you'd have no evidence of anti-union motivation at all occurring within the six-month period.
Speaker: But that's a wholly different situation because there, the charge is that he was discriminatorily discharged. In order to give color to the character of this discharge, whether it was -- was discriminatory or not, you can then go back and to hear evidence to show what the nature of it was.
Norton J. Come: Here, Your Honor, the violation, as found by the Board, is maintaining a union security provision that did not comply with Section 8 (a) (3) of the Act. There is no violation predicated on the execution of the original contract and the dues reimbursement provision excludes that period.
Felix Frankfurter: What you're saying is, if I understand you, that when an employer compels a union -- tells his employees to -- to give up the check-off or -- check-off to put into the security fund, etcetera, that's -- that's a neutral act and what you're doing is to illuminate what that means as to -- for what purposes and what's the meaning of that -- of that conduct. Is that what you're saying?
Norton J. Come: Yes, Your Honor.
Felix Frankfurter: And therefore, when it comes to finding out what an ambiguous or a neutral act is, you can resort to evidence which, in and of itself, would not furnish a cause of action.
Norton J. Come: Yes, Your Honor.
Hugo L. Black: Would you have any case here if you didn't have that particular bridge of illumination signing on facts?
Norton J. Come: In this particular case, probably not. However --
Hugo L. Black: Suppose a man --
Felix Frankfurter: (Voice Overlap) --
Hugo L. Black: -- suppose a man gives a note and it's gone. It's bad. He doesn't sue on it, he's barred by the statute of limitation statute. In the meantime, the man gives another note. Can they go back to the first transaction to see what the second note ordinarily and plead to the statute of limitations? I suppose this is an ordinary statute of limitations.
Norton J. Come: Yes, Your Honor.
Hugo L. Black: What about it? Could you prove that it was bad by going back to the first note ordinarily? I don't know.
Norton J. Come: I think you could, Your Honor. I think that --
Hugo L. Black: Would that be because the first note was bad or because the second note was bad?
Norton J. Come: Because the second note was bad. You're predicating liability on the second note. You're not predicating -- it's like a continuing tort, in -- in a sense, in the example that Mr. Justice Whittaker gave.
Charles E. Whittaker: (Inaudible) one time, the situation is (Inaudible) a cause of action is barred by limitations but it is set up defensively in offset of an affirmative cause of action. Is it not generally the law that this action, this -- is set up, no barred, may be proved, in diminution or offsets of the affirmative cause of action?
Norton J. Come: I believe that it is, Your Honor.
Hugo L. Black: Let's go back to my first case. The notes there are barred the statute of limitations. Would that be a good defense to it, that it's barred by the statute of limitations?
Norton J. Come: The original note?
Hugo L. Black: The original note, like you had here. They had a good defense to you if you tried to do anything on this original execution of this contract, didn't they?
Norton J. Come: I think so, yes, Your Honor.
Hugo L. Black: Well, does it -- does the first one get worse because the -- the few notes given are the same thing?
Norton J. Come: I -- I think it is. I don't think that when you continue to do something affirmatively here, you're in the situation which is contemplated by the notion that you ought to have reposed. Yet, you'd --
Felix Frankfurter: When you do something --
Norton J. Come: -- understand --
Felix Frankfurter: -- when you do something, you do something.
Norton J. Come: That is correct, Your Honor.
Hugo L. Black: Do you understand to be the purpose of the repose?
Norton J. Come: The purpose of the repose is to bar a --
Hugo L. Black: You look at -- you look at the Act instead of what you're looking at what something somebody's done in the way they reply, instead of looking it at law. I may see it one way, at another way, the other. Suppose, here, the -- the man here, you didn't have this second thing at all. Suppose they hadn't done anything, would you say that you could keep them all the way up to the violation of the law through the years even though the Congress has said that in six years -- six months, it should be stopped?
Norton J. Come: Well, if --
Hugo L. Black: What is the purpose of that? What is the objection behind that? It's reposed, isn't it?
Norton J. Come: It is reposed when you have stopped the conduct, Your Honor.
Hugo L. Black: Yes, but if --
Norton J. Come: Had there been a --
Hugo L. Black: You have a contract, you have a system of making contracts and it's desirable at some time, they'd be at rest so that the public people will know whether they have a good contract or not.
Norton J. Come: Well, Your Honor --
Hugo L. Black: And you would just simply extend it like they've tried to do in conspiracy cases, wouldn't it, by the same method and technique?
Norton J. Come: Well, Your Honor, when you're enforcing a -- a union security clause each month, as you -- as you did here, you don't have a dispute that dies down. As the court below observed, the dispute here involved is not the kind which varies easily but rankles at least once a month.
Hugo L. Black: Well, how much did it rankle those six months or that year? How many rankles did the Board hear about?
Norton J. Come: Well --
Hugo L. Black: Were there any rankles at all?
Norton J. Come: Well, we got the -- we got the charge which initiated --
Hugo L. Black: When?
Norton J. Come: Well, we got the first charge, Your Honor, within 10 months of the execution of the contract which we --
Hugo L. Black: How about that?
Norton J. Come: --- which, we submit, is not unduly long in these matters because you must remember that the company here was building up its workforce. You had new employees being added over this period. It takes a while for the employees to find out what's going on and to build off enough support to want to do something about it. And I'll -- I'll elaborate on that when I come back.
Earl Warren: We'll recess.